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TMI Blog2020 (4) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 for their failure to comply with the provisions of Regulations stipulated supra. (iii) The bond is liable to be enforced for breach/failure in performance of conditions contained in the aforesaid bond and the entire sale proceeds of Rs. 60 lacs are liable to be recovered from OWPL, however the amount of Rs. 25 lacs to be deposited by OWPL in the escrow account as per the directions of Hon'ble Punjab and Haryana High Court vide order dated 10.01.2020 in CWP No 282/2020 may be adjusted in this regard. The jurisdictional Assistant Commissioner is advised to act accordingly while enforcing the bond." 2.1 Appellant herein were appointed as Custodian under Section 45 of the Customs Act, 1962 for operating a "Custom Cargo Service Provider" under the handling of Cargo in Customs Area Regulations, 2009 (HCCAR). 2.2 A case was booked against M/s Golden Enterprises, 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 Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant was adjudicated by the Commissioner vide the impugned order referred to in para 1, supra. 2.10 Aggrieved by the order of Commissioner Appellant have preferred this appeal. In the appeal they have also prayed application seeking the stay on the operation of order of Commissioner and an application for early hearing of the matter (Custom EH Application No 60087 of 2020. 2.11 Early hearing application filed by the Appellants was allowed by the order dated 18.02.2020, and matter was listed for hearing on 02.03.2020. 2.12 Importer sought to file an intervention application in the matter and he was lowed to filed the intervention application application as per Rule 1 Order 10 of the Civil Procedure Code, 1908 read with Rule 41 of CESTAT Procedure Rules, 1982. The said Application has been numbered as Misc Application No 60118 of 2020. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y them during the course of enquiry and adjudication; * The findings recorded by the Commissioner in the order are contrary to the stand taken by the department in the same matter before the High Court. Department has itself contested challenging the bonafides of the importer before the High Court; * The goods have been allowed provisional release by the Customs in 2013 itself, and the importer had chosen not to take provisional release of the goods. This has resulted in blocking of the space in the ware-house for entire period of litigation and they had demanded the rent and other charges in respect of the storing the said goods. Since after repeated request importer had failed to take the delivery of goods after making payment of the rent and other charges demanded by them, they have auctioned the goods of importer. * 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, they never informed the Custom Authorities about the auction or their intent to auction. * The actions of the Custodian, in auctioning the goods are in contravention of the regulation 5 and 6 of the HCCAR for which the action taken against them in terms of Regulation 11 and 12 of HCCAR is justified. 4.1 We have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 4.2 Undisputedly appellants is working as Custodian as per Section 45 of the Customs Act, 1962 for operating as a "Custom Cargo Service Provider" under HCCAR and is bound to function as per the provision of the Customs Act, 1962 and the HCCAR. In case of any contravention of the provisions of Custom Act, 1962 or the HCCAR, action has to betaken against him in terms of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in section 45 of the Act and persons as referred to in sub-section (2) of section 141 of the said Act; 6. Responsibilities of Customs Cargo Service provider: (1) The Customs Cargo Service provider shall - ........ (l) subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be; (m) ......... (q) abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder. (2) ........ (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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Commissioner of Customs shall prepare a report of the inquiry recording his findings. (6) The Commissioner of Customs shall furnish to the Customs Cargo Service provider a copy of the report of the Assistant Commissioner or Deputy Commissioner of Customs and shall require the Customs Cargo Service provider to submit within the specified period not being less than thirty days any representation that he may wish to make against the findings of the Assistant Commissioner of Customs or Deputy Commissioner of Customs. (7) The Commissioner shall, after considering the report of the inquiry, and the representation thereon, if any, made by the Customs Cargo Service provider, pass such orders as he deems fit. (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 Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freezed." 4.5 In our view the issue in relation to misconduct of the appellant has been adjudged and he has been found responsible for acting beyond the scope of the authority conferred on him in terms of approval granted under Section 45 and HCCAR. However the issue that needs to be considered is whether this act is enough to hold the appellant as habitual offender as has been held by the adjudicating authority for revocation of the permission granted under Section 45 to operate as custodian. Appellant counsel submitted during the course of argument of appeal that appellant is AEO (Authorized Economic Operator) and for that reason he was not required to give any security 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 initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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