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2016 (6) TMI 266 - CESTAT KOLKATA

2016 (6) TMI 266 - CESTAT KOLKATA - TMI - Liability of port trust to pay duty on Import of LAM coke - not accounted for in the Customs area by the custodian and in the custody of the appellant port - Held that:- there is no evidence brought on record by the appellant that any insurance survey was done by any agency or whether any remission of duty under Sec 23 of the Customs Act 1962 was claimed by the appellant. Imported goods lying in the Customs area in the custody of the appellant can only b .....

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d goods under Sec 45(3) of the Customs Act 1962. Accordingly, no reason found to interfere with the orders passed by the first appellant authority & the same is required to be upheld. - Decided against the appellant - C/304/06 - FO/A/75308/2016 - Dated:- 29-4-2016 - Dr. D.M. Misra, (Judicial) Member and Shri H.K. Thakur, Member(Technical) Shri A.K. Jana, Adv. & S.K. Omar Sarif, Adv for the appellant (s) Shri A Kumar, AC (AR) for the Revenue (s) ORDER This appeal has been filed by the appella .....

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1 MT of LAM Coke of Chinese origin in the month of June 1999 and the same was complete by unloaded on 27/6/1999. That out of total quantity imported 25,506.6 MT was cleared from the docks by M/s MESCO by filing 8 bills of entry on payment of duty. Remaining quality of 3001.5 MT, inclusive of 1.5 MT of excess dischared cargo, was not cleared by the appellant. That on 9/12/99 importer requested AC, Customs to extend time for filing Bill of entry under Sec 48 of the Customs Act 1962. That the reque .....

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ppellant was issued a SCN dt 14/8/2003 under Section 45(3) read with Sec 48 of the Customs Act 1962 demanding duty, interest and for imposing penalty. The show cause notice dt 14/8/2003 was confirmed by the Adjudicating authority & upheld by the first appellate authority. 2.1 Learned Advocate. Appearing on behalf of the appellant strongly argued that a super cyclone hit Pardip Port on 29-30/10/99 and the LAM Coke now not accounted for was washed away. That on 31/1/2000 M/s MESCO surrendered .....

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ling written submission in two weeks but no such written submission are available on record. 3. Sh. A. Kumar AC (AR) appearing on behalf of the Revenue argued that as per Sec 45 (3) of the Customs Act 1962 custodian is responsible for the goods till the same are cleared on payment of duty by the importer. That for non account al of goods the same have to be treated as pilfered from the custody of the appellant and appropriate duty has been correctly demanded & confirmed by the lower authorit .....

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. 6 of the OIA dt 8/8/2006 which is reproduced below:- 6. I find that M/S PPT has been interalia declared as a Customs port in terms of clause (a) of Section 7 of Custom Act 62 under notification no. 62/94-Cus(NT)dt. 21.11.94 as amended for unloading of imported goods. M/S PPT has been authorized and appointed as custodian and all imported goods unloaded in port remain their custody till these are cleared for home consumption or are warehoused or transhippeas provided in the law. The PPT having .....

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ods likely to be stored. Till physical clearance is taken by the importer, the goods remain under the custody of the Port Trust authorities and therefore the importer may not have any control over the said goods. The appellants have stated that in view of the provisions as enumerated under Section 42 & 43 of the Major Port Trust Act 63 and as per the conditions of the licenses granted to M/S MESCO by them the goods stored in open spaces, stack yark, sheds or other places shall remain at the .....

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erms of the provisions enunciated under both the said sections. It is nowhere mentioned that the custodian, M/S PPT is only responsible for the goods stored in covered places, and has no responsibility for the goods which are stored in the open. Since the main crux of M/S PPT s argument hinges in this fact it appears that no such distinction of open and closed space exists, and hence this argument is untenable. Thus liability arising out of a contract made between custodian and the importer woul .....

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d goods in a Customs area whether under the provisions of sub section (1) or under any law for the time being in force- (a) shall keep a record of such goods and send a copy there of to the proper officer (b) shall not permit such goods to be removed from the Customs area or otherwise dealt with except under and in accordance with the permission in writing of the proper office. In accordance with the progision of section 48 of the Customs Act 62 it was the responsibility of the custodian of the .....

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e the date of filing of bills of entry neither the appellant nor the importer i.e M/S MESCO intimated about loss of cargo for any reason including super cyclone which took place on 28/29 October 99 . the bills of entry were filed on 16.12.99 for clearance of entire remaining quantities without stating anything about so called loss or destruction by the importer. Thus the importer was fully satisfied that the entire remaining quantities of 3001.5 MT. were lying in the port area without any destru .....

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ook place after the order of clearance of the goods was made by the proper officer of Customs, but before the physical clearance of the goods from the port area. 4.1 Sec 45 of the Customs Act 1962 is very relevant, so for as the responsibilities / duties of the custodian of imported goods are concerned and is reproduced below:- Sec 45. Restrictions on custody and removal of imported goods. - (1) Save as otherwise provided in any law for the time being in force, all imported goods, unloaded in a .....

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