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2014 (6) TMI 302 - AT - CustomsDuty demand from the port custodian for shortage of goods - appellant contended that argued that the provisions of Section 45 (3) are applicable only when the goods after being unloaded in a Customs Area have been pilfered - Whether the custodian M/s Gujarat Adani Port Ltd is liable to pay duty with respect to the shortage of 457.588 MT of Crude Petroleum Oil detected when against the quantity of 5221MT shown in the Import General Manifest a quantity of 4722.040 MT was received in on shore tank from vessel M T Argoat - Held that:- In view of the provision of Section 45 (3) duty can be demanded from the custodian of the goods if after importation and unloading, the imported goods are pilfered - adjudicating authority has held that the goods were unloaded in the Customs area. However, adjudicating authority is silent about the fact whether 100% of the manifested goods were received in the on shore tank and also whether the goods were pilfered after unloading in the Customs area. Pilferage of the imported goods takes place while the goods were in the custody of the custodian which has to be established by Revenue by way of an FIR and a police report. None of above twin requirement has been brought on record. In the present proceedings, a shore outturn report was jointly prepared by the surveyor, terminal operator, in the presence of Customs officers and the custodian on 30.04.004. A protest was also lodged by the appellant within half an hour of the discharge of cargo on 27.04.2004. Based on the facts and circumstances available on record, it cannot be said that the entire quantity of the imported goods as shown in the Import General Manifest was received by the custodian. Further, as per the procedures prescribed by the Revenue under Circular No.96/2002-Cus, dt.27.12.2002 also even duty has to be demanded from the importer for the quantity of liquid cargo received in ‘shore tanks’ and not on the basis of ullage Survey report. In the absence of any establishing report of pilferage of imported goods, when the goods were under the custody of the appellant, no duty liability can be upheld against the present appellant. - Decided in favour of appellant.
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