TMI Blog2018 (4) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d shortfall of 28457 roller ball pen, 2050 mechanical pencil and 267840 coloured mechanical pencil and excess of refills to the extent of 7360 pieces. According to the original authority, the container was not sealed and lock was that of the custodian with the keys under their control and the gross weight was found to be far less than the declared weight in the bill of lading. 2. According to the appellant, the show cause notice does not explicitly assert that physical ascertainment had been carried out for the first time and the revised quantity had never been authenticated; the conclusion of shortage is, therefore, not justified and that the basic documents for ascertaining were not available on record, which was the reason for rejecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weight or to infer that it had not been subject to weighment by the agent of the shipping line before issue of bill of lading. It is also on record that the container after landing in India was in the custody of the appellant and that the keys of the padlock securing the container was in their possession. The presumption of 'short-shipment' that is tenable in a container with the original seal cannot be claimed by appellant. 5. Custodianship carries with it a responsibility that is acknowledged in contract law. Handlers of containers in the transit from the address of the shipper to that of the consignee are liable to be proceeded against by one or the other for non-delivery or insufficient delivery. It is in the context of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been imposed under section 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. The appellant has been derelict in its responsibilities as custodian. The Customs Act, 1962 is not the proper provision to be invoked for that negligence. The liability to duty on pilfered goods arises from the responsibility of the custodian and not by any other expression provision in the Customs Act, 1962. Section 13 of Customs Act, 1962 enables an importer to escape duty on p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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