TMI Blog2018 (6) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the impugned order is an order or decision passed by the Commissioner under the Customs Act as an adjudicating authority. Appellant relied upon the decision in the case of Ratan Kumar [2000 (8) TMI 572 - CEGAT, KOLKATA], Samsudeen [1990 (10) TMI 219 - CEGAT, CALCUTTA] - All these decision analyse the situation wherein the goods which were confiscate has been auctioned or sold by the department invoking Sections 142/150 of the Act. When the goods have been removed or sold by the department during the pendency of appeal, the Courts have held that the appellant is entitled to be compensated to the extent of value of goods. In the present case, the goods were lost by theft as seen from the Police compliant. Therefore these decisions do not assist the appellant. The Tribunal being a creature of the statute is empowered to pass orders only on appeals as provided in section 129A of the Customs Act - the issues arising for consideration as presented by the facts of the case does not fall within the jurisdiction of the Tribunal - appeal dismissed being not maintainable. - C/348/2010 - Final Order No. 40880/2018 - Dated:- 16-2-2018 - Ms. Sulekha Beevi C.S., Member (Judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized from the unit of appellant and the balance was not available for confiscation. The goods seized vide Mahazar dated 24.1.1003 were kept in the bonded warehouse of SKM Impex (the appellant), at 5/6, Sridevikuppam Road, Kasi Industrial Estate, Valasaravakkam, Chennai - 87. The premises was kept under lock and key and seal by the Customs department. 5. After due process of law, on 20.4.2004, Order-in-Original No. 2219/2004 was passed by Commissioner (Exports), inter alia ordering confiscation of 1609.326 MTS of scrap including 453 MTS seized and balance quantity was not available for confiscation. The Order-in-Original also imposed a fine of ₹ 10 lakhs in lieu of confiscation of 453 MTS of metal scrap that was seized under mahazar dated 24.1.2003B A fine of ₹ 30 lakhs was also imposed. The appellants preferred appeal along with stay application against the said order before the Tribunal. 6. According to appellant a theft occurred in the bonded warehouse where the goods seized were kept in safe custody. On 14.6.2005, the appellant gave intimation to the department about occurrence of theft of scrap. The departmental officers visited the EOU premises to ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also issued for recovery of the said duty amount. The appellant preferred appeal against the Order-in-Original before the Commissioner (Appeals) which is pending till date. 12. While so, the appellant filed Writ Petition No. 1917/2008 before the Hon'ble High Court of Madras to issue a writ of certiorari or any other appropriate order to quash the detention notice and to grant interim stay of the operation of detention notice till disposal of the writ petition. The Hon'ble High Court after granting interim stay on 7.2.2008, disposed the writ petition on 17.3.2008 extending the interim order till the disposal of the appeal and the stay application pending before Commissioner (Appeals). 13. On 28.4.2008, the Commissioner (Appeals) passed an interim order waiving the predeposit and stayed recovery of duty and penalty till the disposal of the appeal before him. 14. Meanwhile the appellant issued a letter dated 9.4.2008 to the Commissioner of Customs (Export) calling upon to pay compensation of ₹ 3 crores for the loss of goods. According to appellant, as per section 126 of Customs Act, when any goods are confiscated under the Act, the goods vest with the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the custody of the confiscated goods. The department is trying to harp upon the undertaking given by the Managing Partner Shri K. Saminathan. The said undertaking is only with regard to the goods seized and kept in bonded warehouse and is not an undertaking with respect of confiscated goods. The undertaking is only to the effect that the appellant shall not dispose of or part with or substitute with the seized goods except with the prior written permission of SIIB. When the goods have been confiscated the dejure property in the goods vests with the Central Government and it is mandatory of the department officers to take possession of the goods so confiscated. The undertaking obtained from K. Saminathan cannot be misconstrued against him to relieve the customs officers from their legal responsibilities towards the goods confiscated. b. On coming to know about the theft, the appellant had immediately intimated the same to the department vide letter dated 14.6.2005. When the officers visited the premises they found the lock and seal of the godown to be intact. This has been recorded in the mahazar. The appellant had also preferred an insurance claim, which however did not mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by an 'adjudicating authority', The order is merely an administrative order. The representation dated 9.4.2008 given by the appellant was considered by the Commissioner as per the directions of Hon'ble High Court. This would not change the nature of order as an adjudication order as the order is not passed by Commissioner in the capacity as an adjudicating authority. If aggrieved by rejection of claim for compensation, appellant has to file a civil suit before civil court. 18.1 On merits, the Id. AR submitted that appellants are manufacturers and were availing the benefit of exemption of duty as per notifications. On intelligence that they were diverting the goods imported on which duty exemption was availed, SIIB conducted investigation and on reasonable belief had seized the goods. The goods were confiscated, The confiscated goods being in bulk was handed over to the owner/appellant for safe custody and was kept in the bonded warehouse of the appellant. Though the warehouse was kept under lock and key by the department, the possession still remained with appellant. Mere putting of lock and key will not transfer possession of the goods. The physical po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of / substitute or otherwise deal with the goods seized except with prior permission of SIIB. This has been noted in the mahazar dated 24.1.2003. The department b n s upon this undertaking to contend that the goods remai ed in the custody of appellant even after seizure and confiscation, and therefore alleges that appellant is liable for loss of goods. The duty demand has been raised for the lost goods to the tune of 297.06 MTS on the basis of this allegation. 21. As seen from the FIR dated 11.7.2005, a theft was reported to the Police. The Final Report dated 24.11.2006 on the said criminal complaint shows that after investigation the Police has treated the case as undetected. The entire quantity of 453 MTS were kept in the main godown in the premises and it was sealed by the officers of the department with Customs Wax Seal No. 113. In the mahazars recorded after reporting the theft, it is seen noted that the seals were intact. The appellant is thus claiming compensation for the loss of goods alleging that the loss of goods has occurred due to negligence of the Customs department. The appellant contends that as per Section 126 of the Customs Act, after confiscation, the custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the letter of undertaking signed by the appellant. The essence of the grounds stated in appeal as well as the letter dated 9.4.2008 is negligence or breach of duty from taking reasonable care. The relief claimed is damages for loss of goods. These issues being rights and liability under civil law, in our view, is outside the jurisdiction of the Tribunal. 24. Section 129A deals with appeals to the Appellate Tribunal. The said provision reads as under:- (a) a decision or order passed by the [Principal Commissioner of Customs or Commissioner of Customs] as an adjudicating authority; (b) an order passed by the 23[Commissioner (Appeals)/ under section 128A, (c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediate/y before the appointed day; (d) an order passed by the Board or the 4[Principal Commissioner of Customs or Commissioner of Customs], either before or after the appointed day, under section 130, as it stood immediate/y before that day 25. The definition of 'adjudicating authority' under 2(i) means any authority competent to pass any order or decision under the Act . Thus an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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