TMI Blog2021 (9) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Cargo Service provider to mean any person responsible in receipt, award, delivery, discharge or otherwise handling of imported goods and exported goods and includes the custodian as referred to in Section 45 of the Act and the persons as referred to in sub-section (2) of Section 141 of the said Act. The use of words while includes the custodian again corroborates the finding of the Adjudicating Authority Below - M/s. DIAL after taking notice of the impugned incidence of removal of package without filing of Bill of Entry have taken measures to avoid any such incidence in future. All the conditions which are required to be complied with under Rule 5 of HCCR, 2009, are admitted to have been complied with by M/s. DIAL post the impugned incidence. Rule 6(2) of HCCR restricts such contracting or outsourcing of Cargo handling functions. Even if the permission for outsourcing was given to M/s. DIAL vide the letter of Commissioner of Customs (IMG) dated 07.07.2012, the said permission was agreed to be coterminus with custodianship of M/s. DIAL and was held subject to fulfilment of provisions of Customs Act, 1962 and the Rules and Regulations made thereunder. - Admittedly the cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Customs bond, it was proposed to be vicariously liable for all the acts of M/s. CELEBI. Accordingly, a show cause notice bearing No. 91/DC/SIIB/ACC Imports/2015 dated 16.3.2015 was served upon M/s. DIAL as well as M/s. CELEBI proposing the imposition of penalty on them under the provisions of Customs Act, 1962. The said proposal was initially accepted vide Order in Original No. 507/2016 dated 22.01.2016 vide which the penalty of Rs. One lakh each was imposed on M/s. DIAL and M/s. CELEBI. The said order has been confirmed vide the Order under challenge. 3. I have heard Shri Anuj Kant, learned Authorised signatory (GM-Taxation) for the Appellant and Shri Pradeep Gupta, learned Authorised Representative for the Department. 4. It is submitted on behalf of the appellant that there is no denial to the fact that duties assigned to M/s. DIAL by Airport Authority. Commissioner of Customs (IMG) New Delhi were being outsourced by M/s. DIAL to M/s. CELEBI, after being duly executing the concessional agreement in the year 2009. It is submitted that since M/s. DIAL has handed over day-today operation of cargo at Delhi Airport to M/s. CELEBI, it was M/s. CELEBI who was supposed to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imultaneously be held liable for violating relevant provisions need to be looked into. The provisions read as follows: Clearance of imported goods 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 pilf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssional agreement and observed that despite outsourcing of Custodian duty by M/s. DIAL to M/s. CELEBI, the agreement still required M/s. CELEBI to submit detailed development plan corroboration plan the concept trading etc. to M/s. DIAL before proceeding with any future upgradation, modernization, of cargo terminal. M/s. DIAL was still entitled to inspect the development processes and to issue such directions as may be deemed appropriate by M/s. DIAL to remove any defect in designing for upgradation (para 6.1.4 of Concessional agreement). Learned Departmental Representative has also referred to various other similar paragraphs in said agreement. Hence I am of the opinion that it has rightly been held that M/s. CELEBI was never intended to be a Custodian and M/s. DIAL cannot absolve them from the responsibilities and obligations casted upon them in the manner prescribed as per section 145 of Customs Act, 1962 and those as are mentioned in HCCR, 2009. 10. The HCCR regulations define Customs Cargo Service provider to mean any person responsible in receipt, award, delivery, discharge or otherwise handling of imported goods and exported goods and includes the custodian as referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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