TMI Blog2022 (12) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... e made liable to pay customs duty on such goods under Section 45(3) of the Act which applies only in a situation where imported goods are pilfered after unloading . There is absolutely no material to come to the conclusion that the aforementioned goods not cleared by MESCO were pilfered . There cannot be any presumption on this score as has been done in the adjudication order and the appellate orders. The three orders run contrary to the factual position regarding loss of the cargo on account of the super cyclone as informed by MESCO to the Customs Authorities on 1st April, 2000 itself. The case on hand is on an even better footing. As far as the present case is concerned, there is sufficient material available on record to show that the goods in question were in fact lost in the super cyclone. Therefore, any attempt to fasten liability on PPT i.e. the Port Authority under Section 45(3) of the Act would not only be misconceived but legally unsustainable. This Court has no hesitation in setting aside the adjudication order, and the Appellate Orders of the Commissioner (Appeals) and CESTAT affirming such order has been entirely without legal basis - Appeal allowed. - OTAPL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforementioned cargo, MESCO on the following day i.e. 9th December 1999, requested the Assistant Commissioner, Customs to extend time under Section 48 of the Act to file B/E for the balance cargo. The delay by the MESCO in filing B/E was waived and 4 B/Es were noted and processed action. PPT was informed on 16th December, 1999 not to put the goods to public auction. The 4 B/Es filed by MESCO were assessed provisionally to duty on 17th December, 1999. 6. MESCO paid the duty only in respect of 1B/E for 1000 MT of LAM Coke on 18th December, 1999 and in respect of another B/E for 1000 MT of LAM Coke on 7th January, 2000 along with interest under Section 47 of the Act. On the remaining 1001.5 MT of LAM Coke assessed under the remaining 2 B/Es, MESCO failed to pay the assessed customs duty of Rs.17,41,843/-. The reason given was that the goods were not in existence. 7. On 1st April 2000, MESCO informed the Customs Department that the entire quantity of goods under the above B/Es had been washed away due to the super cyclone which occurred on 29th October, 1999 and which hit the Paradip area with severity. For about three years thereafter, no steps were taken by the Customs Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said quantity of LAM Coke by natural calamity and since PPT belatedly asked MESCO to account for the said cargo, it appeared that the said goods have been pilfered from the port premises after discharge from the vessels. Accordingly, the demand was confirmed, and interest and penalty were also levied. 12. PPT then carried the matter in appeal to the Commissioner (Appeals). In the order dated 27th July, 2006 dismissing the appeal, it was held that PPT was the custodian of the aforementioned imported goods and it had not established that the said goods had been lost or destroyed. Accordingly, the adjudication order was upheld. 13. The PPT then went in appeal before the CESTAT which has by the impugned order dated 29th April, 2016 concurred with the Joint Commissioner and Commissioner (Appeals). It was held that imported goods lying in the Customs area in the custody of the Appellant can only be cleared on payment of duty and cannot be handed over to an importer by taking shelter of Sections 42 and 43 of the MPT Act. It was further held that the quantity not accounted for by the custodian had to be treated as pilfered and, therefore, PPT was liable under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not been able to dispute the fact that although MESCO sent a letter on 1st April, 2000 informing them of the loss of cargo in the super cyclone, no action was taken till the issuance of SCN three years later on 18th July, 2003. This delay has not been explained. If the goods themselves were not available on account of the super cyclone, it is inconceivable how the PPT could be made liable to pay customs duty on such goods under Section 45(3) of the Act which applies only in a situation where imported goods are pilfered after unloading . There is absolutely no material to come to the conclusion that the aforementioned goods not cleared by MESCO were pilfered . There cannot be any presumption on this score as has been done in the adjudication order and the appellate orders. The three orders run contrary to the factual position regarding loss of the cargo on account of the super cyclone as informed by MESCO to the Customs Authorities on 1st April, 2000 itself. 19. In Board of Trusties of the Port of Bombay v. Union of India, 2009 (241) ELT 513 (Bom.), the facts were that the liability for payment of customs duty was sought to be fastened on the Bombay Port Trust under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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