TMI Blog2018 (4) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear abidance of the terms and conditions of the warehousing licence issued under Section 58 of the Customs Act and the warehousing bond executed under Section 59. Having followed the terms and conditions of the licence, the appellant is thus entitled to claim the benefit under Section 23 of the Customs Act by remission of duty. The demand of Customs duty on the warehoused goods which has been stolen cannot be demanded from the Appellant - demand set aside - appeal allowed - decided in favor of appellant. - C/88042/2017 - A/85700/2018 - Dated:- 22-3-2018 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) AND HON BLE SHRI RAJU, MEMBER (TECHNICAL) Appearance Shri Prakash Shah, Advocate for Appellant Ms. P. Vinitha Sekhar, Jt. Commr. (A.R) for respondent Per : Ramesh Nair The Brief facts of the case are that the Appellant are running duty free shops at the Goa International Airport. They have been granted Warehouse license under Section 58 of the Customs Act for the said shops. The goods brought into the shop are insured against theft, burglary, pilferage and natural causes and the beneficiary of the same is Customs department. On 26th may 2008 a theft/bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olen in view of the legal maxim lex non cogit ad impossibilia (the law does not expect a person to do the impossible). That the sole findings of the impugned order is that Appellant had failed to fulfill the conditions of licence issued to them under section 58 of the Act and bond executed by them under section 59 of the Act. That the judgments cited in the impugned order by the revenue authority are in context of taxable event of imported goods and loss of warehoused goods respectively. He submits that the orders of Tribunal in case of Interface Connectronics Pvt. Ltd Vs. Commissioner of Customs, 2004 (164) ELT 95 (TRI) are applicable to the facts of the case. He relies upon the judgment of Hon ble High Court of Calcutta in case of Sushil Kumar Kayan Vs. Assistant Collector of Customs 1993 (68) ELT 537 (Cal.) and Hon ble Supreme Court s Order in case of West Bengal Warehousing Corporation Vs. Assistant Collector of Customs 2002 (145) ELT A61 (SC). He submits that as per the conditions of the licence the Customs duty was safeguarded by comprehensive insurance policy drawn in favour of Commissioner of Customs, Goa. He accordingly seeks to set aside the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... todian of the goods. No goods would be allowed to be removed from such warehouse without following the customs rules, procedures and payment of duty and there is no dispute that the Appellant scrupulously followed the said conditions. It is with the fact that that under the terms of the licence the Appellant had safeguarded the customs duty by getting issued the comprehensive insurance policy towards customs duty in favour of the Commissioner against theft and all incidents of loss. In such case when the bonded warehouse is under the control of the Customs authorities and the theft has occurred that too by the CISF and Police personal, the appellant cannot be found faulted with. The duty having been adequately safeguarded by insurance policy drawn in favour of the Commissioner. This policy was instructed to be issued by the revenue only for the reason that in case of any mishap, the revenue would claim the duty from the insurance company. Apart from this getting the insurance plicy issued in the name of Commissioner would not serve any purpose. Thus on the one hand the revenue has sought to recover any loss of duty from the insurance company by making the Appellant pay for the insu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be given a reasonable opportunity of being heard. (3) Pending an enquiry whether a licence granted under sub-section (1) should be cancelled under clause (b) of sub-section (2), the Assistant Commissioner of Customs or Deputy Commissioner of Customs may suspend the licence. A plain reading of the above would reveal that the Section 58 stipulate that they are subject to the conditions prescribed in the licence and also subject to execution of warehousing bond under Section 59. One of the conditions of the licence and warehousing bond executed by the appellant is that the appellant shall insure the goods deposited in the warehouse against theft, pilferage, fire accident and other natural calamities, etc., at least for a value equal to the Customs duty by a warehousing insurance policy drawn in favour of the Commissioner of Customs. In the present case it is an admitted position that the appellant insured the warehoused goods for that part of the value representing Customs duty on the imported goods. Thus it is clear abidance of the terms and conditions of the warehousing licence issued under Section 58 of the Customs Act and the warehousing bond executed under Section 59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Excise or Customs that when goods is lost, even though the same is otherwise liable to duty either on imported goods or manufactured goods but since the goods is not capable of being enjoyed by the owner either for his consumption or for sale and he loses the value which is much more than the duty, the owner of the goods should not be further burdened with duty. In the present case also, the appellant lost the entire value of the goods due to admitted theft. Therefore in such case duty cannot be demanded. 8. Further we find that in case of Sushil Kumar Kayan Vs. Assistant Collector of Customs 1993 (68) ELT 537 (Cal.), the Hon ble Court held that no duty is payable on goods stolen from the bonded warehouse. Even in that case the facts do not show as to whether the duty of stolen goods was insured in favour of the Customs Department whereas in the present case the duty is adequately secured by way of insurance policy in favour of revenue. 9. In view of above discussion and facts we are therefore of the view that there is no ground to demand duty from the Appellant and the demand is required to be set aside. We therefore set aside the impugned order and allow the appeal w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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