GUJARAT ADANI PORT LTD. Vs. COMMISSIONER OF CUS.

JUDGEMENT

(1.) APPEAL No. C/472/2006 has been filed by M/s. Gujarat Adani Port Ltd. against Order -in -Original No. 58/Commissioner/2005, dated 27 -12 -2005, passed by the Commissioner of Customs, Jamnagar. Shri Hardik Modh, ld. Advocate appearing for the appellant argued that the appellant is a Company registered under the Companies Act, 1956 and under a licence from the Government of Gujarat is engaged in the business of operating port at Mundra. The appellants have also been designated as Custodian under Section 45 of the Customs Act, 1962. On 22 -4 -2004, shipping line viz. M/s. Sea World Shipping and Logistics Pvt. Ltd. filed prior Import General Manifest for 5,221.00 M.T. before arrival of cargo at Mundra Port. On 26 -4 -2004, vessel named M.T. Argoat Voy. 024 carrying cargo arrived and declared the cargo as "condensate Crude Petroleum Oil" (CPO). The vessel was berthed at 12.06 Hrs. On 27 -4 -2004, the Customs and Surveyor formalities were completed and the discharge of the cargo commenced at 16.15 Hrs. and the same was completed at 16.48 Hrs. In the presence of the importer's nominated surveyor, Terminal Operator and Customs Officers, the appellant provisionally gauged the Tank and found that the cargo received was approximately 4722.040 M.T. with a discrepancy of Approximately 457.548 M.T. The appellant immediately lodged a protest letter with the Master of the vessel at 17.00 Hrs on 27 -4 -2004 with a copy to Customs Department, Importers, Surveyors and the Customs House Agent pointing out the discrepancies. On 30 -4 -2004, Shore Out Turn Report was jointly prepared by the importer named Surveyors, Terminal Operators in the presence of Customs officers, and the shortage was confirmed. The Commissioner of Customs confirmed customs duty demand of Rs. 26,64,740/ - against the appellant under Section 45(3) of the Customs Act, 1962.

(2.) ON the other hand, Shri J. Nair, (AR) appearing for the Revenue, argued that the impugned Order -in -Original has been correctly passed by the Commissioner as the appellant did not dispute the dry tank certificate and also chose not to deploy his representative at the time of discharge of cargo from the vessel to the shore tank.

(3.) 1 In view of the above provision of Section 45(3) duty can be demanded from custodian of the goods if after importation and unloading, the imported goods are pilfered. In Para 11.2 of the OIO, dated 27 -12 -2005, the adjudicating authority has held that the goods were unloaded in the Customs area. However, adjudicating authority is silent about the fact whether 100% of the manifested goods were received in the onshore tank and also whether the goods were pilfered after unloading in the Customs area. In this regard, the appellant had relied upon the judgment of CESTAT, Mumbai in the case of CC, Mumbai v. Board of Trustees of the Port of Mumbai [2008 (182) E.L.T. 260 (Tri. -Mum.)]. CESTAT, Mumbai has held in Para 4 as follows: -