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2018 (4) TMI 1050 - CESTAT MUMBAIPilferage - Recovery of duty from custodian-appellant - Penalty u/s 117 of Customs Act, 1962 - confiscation - Held that: - Custodianship is institutionalized in the Customs Act, 1962 to ensure that there is no loss of revenue between the landing of a consignment and its clearance for home consumption. Inherent in such custodianship is the presumption of conformity with the declaration unless asserted otherwise at the time of taking over of custodianship of the cargo. In the absence of such assertion, there is no reason to accept the claim of 'short shipment' - the adjudicating authority has rightly fastened the liability for duty on the pilfered goods on the custodian, who is the appellant in the present proceedings. Confiscation - Held that: - The goods that were available are not offending goods. There is no allegation that these have been imported contrary to any prohibition under the Customs Act, 1962 or any other law in force - there is no ground for confiscation of these goods. Penalty - Held that: - Penalty has been imposed u/s 117 which is liable to be invoked for any contravention or abetting of any contravention or failure to comply with any provisions of the Act - There is no requirement under the Customs Act, 1962 for declaration of any pilferage nor there is any apparent act of omission or commission that warrants imposition of penalty under section 117 - penalty set aside. Appeal allowed in part.
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