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2021 (9) TMI 1130 - AT - CustomsLevy of penalty u/s 117 of CA - Statutory obligation and liability of Custodian - Legality of removal of goods from Customs Area - statutory obligation of M/s. DIAL to be responsible for handling cargo in the Customs area - Outsourcing and Custodianship of goods - HELD THAT:- Bare perusal of the Act makes it clear that the person who approved by competent officer of Customs to be the Custodian of goods lying in customs area is duty bound for handling of cargo in the Customs area as mentioned in the sub clause (2)(b) of section 45 till the goods are removed from the Customs area. As per section 45(2)(b), the custodian is duty bound to not to permit such goods to be removed from the customs area except after proper permission. From the admitted facts, it is clear that approval of Principal of Commissioner of Customs was given in favour of M/s. DIAL and not in favour of M/s. CELEBI - it was the statutory mandate for the person so approved to furnish the custodian bond. The HCCR regulations define Customs Cargo Service provider to mean any person responsible in receipt, award, delivery, discharge or otherwise handling of imported goods and exported goods and includes the custodian as referred to in Section 45 of the Act and the persons as referred to in sub-section (2) of Section 141 of the said Act. The use of words while ‘includes the custodian’ again corroborates the finding of the Adjudicating Authority Below - M/s. DIAL after taking notice of the impugned incidence of removal of package without filing of Bill of Entry have taken measures to avoid any such incidence in future. All the conditions which are required to be complied with under Rule 5 of HCCR, 2009, are admitted to have been complied with by M/s. DIAL post the impugned incidence. Rule 6(2) of HCCR restricts such contracting or outsourcing of Cargo handling functions. Even if the permission for outsourcing was given to M/s. DIAL vide the letter of Commissioner of Customs (IMG) dated 07.07.2012, the said permission was agreed to be coterminus with custodianship of M/s. DIAL and was held subject to fulfilment of provisions of Customs Act, 1962 and the Rules and Regulations made thereunder. - Admittedly the custodian bond was still of M/s. DIAL. M/s. CELEBI never substituted the same. The provisions of Customs Act and that of HCCR do not absolve the custodian of the responsibilities as mentioned in these Regulations to be observed by the Custodians itself, that there are no infirmity with the order under challenge where simultaneously penalty has been imposed upon M/s. DIAL as well. Appeal dismissed.
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