9911796707
TMI Blog2014 (6) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1956 and under a licence from the Government of Gujarat is engaged in the business of operating port at Mundra. The appellants have also been designated as Custodian under Section 45 of the Customs Act, 1962. On 22.04.2004, shipping line viz. M/s Sea World Shipping and Logistics Pvt. Ltd. filed prior Import General Manifest for 5,221.00 M.T. before arrival of cargo at Mundra Port. On 26.04.2004, vessel named M. T. Argoat Voy. 024 carrying cargo arrived and declared the cargo as 'condensate Crude Peroleum Oil' (CPO). The vessel was berthed at 12.06 Hrs. On 27.04.2004, the Customs and Surveyor formalities were completed and the discharge of the cargo commenced at 16.15 Hrs. and the same was completed at 16.48 Hrs. In the presence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Port of Mumbai [2005 (182) ELT 260 (Tri-Mum)] ii) Board of Trustees of Port of Mumbai Vs CC [2008 (223) ELT 635 (Tri-Mum)] 2.2 He further argued that the goods in question are factually liquid cargo and customs duty on the quantity mentioned in shore tank is to be taken into consideration for demanding customs duty in terms of CBEC Circular No. 96/2002-Cus dated 27.12.2002. He also cited the following case laws in support of his argument that duty is leviable on actual quantity discharged into shore tank and not on the basis of ullage survey report: i) General Foods Ltd Vs CC [2008 (232) ELT 750 (T)] & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not dispute the dry tank certificate and also chose not to deploy his representative at the time of discharge of cargo from the vessel to the shore tank. 4. Heard both sides and perused the case records. The issue involved in the present appeal is 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. It is the case of the appellant that the said quantity was never received in the tank on 27.04.2004. That the discharge of the cargo was completed at 16.48 Hrs on 27.04.2004 and a protes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest or, as the case may be, an import report to the proper officer under section 30 for the arrival of the conveyance in which the said goods were carried. 4.1 In view of the above 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. In Para 11.2 of the OIO dt.27.12.2005, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity on the custodian, two things are required to be established:- i) That the entire quantity of imported goods was unloaded in the Customs area and handed over to the custodian. ii) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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