TMI Blog2020 (4) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... e made in terms of Section 47. He holds the goods as custodian of the goods and is bound to follow these provisions while handling the goods while they are in his custody. He could not have dealt with the goods in any manner including sale/ auction of the goods without obtaining written authorization in this respect from the Customs Authority - Undisputedly in the present case the appellant has by his action of auctioning the goods which were in his custody acted without putting the importer to notice and without informing/ seeking permission from the Custom Officer has contravened the provisions of Section 48 of the Customs Act, 1962. Principles of natural justice - HELD THAT:- Commissioner has also failed to take note of certain correspondences between the custom authorities, appellant and the importer in the present case while adjudging the case against the appellant. He has failed to record his findings in respect of these correspondences which were relied upon by the appellants in the proceedings initiated against him. All such correspondences which appellant wish to rely upon in his defence merit consideration and finding recorded - Since it is held that duty in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, New Delhi challenging the classification of the goods imported and the quantum of duty payable on the said goods. During the pendency of the investigation, adjudication and appeal proceedings, the goods imported by the importer vide Bill of Entry No 9072511 and 9072508 both dated 19.01.2013, were detained/ seized by the Custom Authorities. The importer was given the option to take provisional release (as per Section 110 of Customs Act, 1962) of the seized goods after complying with the conditions prescribed in order of provisional release. However importer chose not to avail the same and goods continued under detention/ seizure. 2.3 The seized goods were confiscated by Commissioner in the adjudication proceedings. Subsequently CESTAT has vide its order dated 18.04.2017 set aside the order of Commissioner confiscating the goods and directed for unconditional release of the goods on payment of duty as claimed by the importer. Against this order of CESTAT, revenue filed the appeal before Hon ble Punjab and Haryana High Court (CUSAP No 06/2017) which was dismissed by the High Court as not maintainable vide its order dated 22.02.2018. 2.4 Consequent upon the order of Hon ble Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.12 On 02.03.2020, with the consent of both the sides it was decided that it would be more appropriate to take up the appela itself for disposal rather than considering the stay application separately. Thus both miscellaneous application and appeal were listed for final hearing on 04.03.2020. 3.1 We have heard Shri Sudhir Malhotra Advocate for the Appellant, Shri Deepak Gupta and Shri Mukul Singla for the intervener, and Shri Rajeev Gupta/ M S Dhindsa Authorized Representative for the revenue. 3.2 Arguing for in favour of intervention application, learned advocate for intervener, i.e. importer submitted that he is the person who is impacted most in the matter. He has lost his goods and also the money which was deposited by him as duty for getting the goods cleared by him after protracted litigation and as per the direction of CESTAT vide its order dated 18.04.2017 and High Court order dated 22.02.2018. It is fact that though there was correspondence being made between them and the appellant for handing over the imported goods, appellants have proceeded to auction his goods without seeking no objection from him and without putting him to notice. The conduct of appellant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per the direction contained in the order of High Court in its order dated in 10.01.2020 in CWP No 282 of 2020 (O M), they had deposited an amount of ₹ 25 lakhs which two has been appropriated for adjustment on enforcement of bond executed by them without specifying the reason for the same. It is not clear as to how can Custom demand the duty on the goods which have been given Out of Charge by them under Section 47 of Customs Act, 1962 after satisfying themselves in respect of the payment of duty; In various correspondences, which are available on record Custom have disassociated themselves saying that all the proceedings between the appellants and importers after out of charge are proceedings between two independent legal entities and should be settled between them, that being so how for the action taken by them subsequent to clearance of goods by customs against importer (i.e. their client) can be ground for the action taken by the Custom Authorities. Commissioner has passed the order without recording any findings in respect of various submissions made by them in their written submissions and during the course of hearing, thus violating the principle of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said regulations. 4.6. Relevant provision of ten Customs Act, 1962 and HCCAR are reproduced below: Customs Act, 1962 SECTION 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 customs area shall remain in the custody of such person as may be approved by the Principal Commissioner of Customs or Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported 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 thereof 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 officer or in such manner as may be prescribed. (3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilferred after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. (3) 11. Suspension or revocation of approval for appointment of a Customs Cargo Service provider: (1) The Commissioner of Customs may, subject to the provisions of these regulations, suspend or revoke the approval granted to the Customs Cargo Service provider subject to the observance of procedure prescribed under regulation 12 and also order for forfeiture of security, if any, for failure to comply with any of the provisions of the Act and the rules, regulations, notifications and orders made thereunder; (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the approval granted to a Customs Cargo Service provider where an enquiry against such Customs Cargo Service provider is pending or contemplated. 12. Procedure for suspension or revocation of approval and imposition of penalty:- (1) The Commissioner of Customs shall issue a notice in writing to the Customs Cargo Service provider stating the grounds on which it is proposed to suspend or revoke the approval and requiring the said Customs Cargo Service provider to submit within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (8) If any Customs Cargo Service provider contravenes any of the provisions of these regulations, or abets such contravention or who fails to comply with any provision of the regulation with which it was his duty to comply, then, he shall be liable to a penalty which may extend to fifty thousand rupees. (9) Any Customs Cargo Service provider aggrieved by any decision or order passed under this regulation, may appeal under section 129A of the Act to the Customs Central Excise and Service Tax Appellate Tribunal established under sub-section 1 of section 129 of the Act. 4.3 From the provisions of the Customs Act, 1962 and HCCAR as note above it is quite evident that Custodian appointed in terms of Section 45 ibid, do not hold the title to the goods whether before or after the order of the clearance made in terms of Section 47. He holds the goods as custodian of the goods and is bound to follow these provisions while handling the goods while they are in his custody. He could not have dealt with the goods in any manner including sale/ auction of the goods without obtaining written authorization in this respect from the Customs Authority. Undisputedly in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curity for bond executed. If that is so the finding recorded by the Commissioner as habitual offender, is contrary to the AEO status conferred on appellant. 4.6 Further we find that that Commissioner has also failed to take note of certain correspondences between the custom authorities, appellant and the importer in the present case while adjudging the case against the appellant. He has failed to record his findings in respect of these correspondences which were relied upon by the appellants in the proceedings initiated against him. All such correspondences which appellant wish to rely upon in his defence merit consideration and finding recorded. In our view order passed by the commissioner without recording findings in respect of these correspondences relied in their defence by the appellant has been passed in violation of principle of natural justice. In view of this reason the matter needs to be remitted back to the adjudicating authority for fresh consideration. 4.7 Since we have held that duty in respect of the goods in custody of the custodian if not cleared for home consumption as provided for by in terms of Section 47, needs to be paid by the custodian, amount of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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