1. M/s. Tirupur Container Terminals (P) Ltd. [formerly known as M/s.
TEA Lemuir Container Terminals Pvt. Ltd.], appellants in appeal No.C/9/2005, were appointed as custodian of imported goods entering the Inland Container Depot (ICD), Tirupur by the Collector of Customs, Coimbatore as per Public Notice No.8/95 dated 9.5.95. The Public Notice reads as under : In exercise of the powers conferred under Section 45(1) of the Customs Act, 1962 (52 of 1962), I, A.P. Sudhir, Commissioner of Customs and Central Excise, Coimbatore hereby appoint M/s. T.E.A. Lemuir Container Terminals Pvt. Ltd., Tirupur, to be the custodian of Imported goods received in containers at Inland Container Depot, Tirupur and / or transhipped to Inland Container Depot, Tirupur, until these are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII of the Act ibid. Similarly, they will also be the custodian of Export Cargo brought into ICD, Tirupur for stuffing, accountal, Customs Examination, transportation and safe delivery of the customs sealed containers at the gateway ports for onward shipment.
2. M/s. T.E.A. Lemuir Container Terminals Pvt. Ltd., Tirupur as the custodian of goods meant for Export and Import would be required to comply with the provisions of Section 45(2) of the Act ibid as well as rules & regulations and instructions issued from time to time on the subject mentioned above.
Certain export goods, which were brought to the ICD (a "Customs area" coming within the definition of this term under Section 2(11) of the Customs Act), were removed by the appellants on 7.8.2003 without intimation to the department. This act of the appellant-company was taken as a breach of Section 51 of the Customs Act and, by a show-cause notice, penalties were proposed on the company and its General Manager (appellant in appeal No. C/10/2005) under Section 117 of the Act. The proposal was contested. In adjudication of the dispute, the original authority imposed penalties of Rs. 10,000/- each on the company and its General Manager under Section 117 ibid, and its decision was upheld by the Commissioner (Appeals). Hence the present appeals by the company and the General Manager. 2. It is submitted by learned Counsel for the appellants that the export goods which were brought into the "Customs area" were allowed to be taken back without filing of any Shipping Bill and, therefore, there was no breach of any provision of law in respect of such goods. The removal of the goods from the ICD back to town was made under proper gate passes. In any case, no mens rea was involved in the said act and, therefore, no penalty was imposable on the appellants under Section 117 ibid. It is also submitted by ld. counsel that there is no provision in the Customs Act governing the handling of export goods in ICDs managed by custodians appointed under Section 45 of the Act, which provision deals with handling of import goods only. Ld.
counsel has also challenged the separate penalty imposed on the General Manager under the same provision (Section 117) 3. Ld. SDR, apart from reiterating the findings of the Asst.
Commissioner and the Commissioner (Appeals), refers to Public Notice No. 6/95-Cus. dated 9.5.95 issued by the Collector of Customs, wherein the procedure for handling of containerized export cargo in ICD, Tirupur was laid down. She also refers to Section 141 of the Customs Act and submits that the appellants failed to submit themselves to the control of the proper officer of Customs in charge of the ICD, by removing the goods from the "Customs area" without notice/intimation to the proper officer. In such circumstances, it is argued, Section 117 of the Act gets attracted.
4. After giving careful consideration to the submissions, I agree with learned Counsel that nothing contained in Section 45 of the Customs Act is applicable to export goods. That provision of law governs handling of imported goods by a custodian appointed for the purpose by the jurisdictional Commissioner of Customs. However, both imported goods and export goods entering a "Customs area" are covered by Section 141 which reads as under : All the conveyances and goods in a Customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of Customs.
Admittedly, the ICD, Tirupur is a "Customs area" in terms of Section 2(11) of the Act and its custodian/manager was appointed by an officer of Customs viz. Collector of Customs. The export goods which were received in the ICD were subject to the control of the Collector/Commissioner and his subordinate officers of Customs exercising actual control of the "Customs area". This would mean that entry of export goods into the "Customs area" and its exit from the area would be subject to the control of the proper officer of Customs in charge of the area. In the instant case, the removal of the goods to town was, admittedly, made without intimation to the proper officer of Customs, a fact which is evidenced by the gate passes issued by the appellants, which do not bear any endorsement by the proper officer of Customs. This act of the appellants was, obviously, in breach of the custodian's obligation to subject the export goods to the control of the proper officer of Customs in terms of Section 141 ibid. Hence there is nothing wrong in the finding recorded by the original authority that the appellants acted in contravention of the provisions of Section 141 of the Act. The penalties were seemingly imposed for this reason. In this context, however it is pertinent to note that the SCN did not allege contravention of Section 141. It alleged breach of Section 51 of the Act for the purpose of imposing penalty under Section 117. But Section 51 deals with clearance of goods for exportation and does not deal with handling of export goods by a custodian appointed under Section 45. Hence the imposition of penalties on the appellants under Section 117 is on a ground which is extraneous to the SCN. This apart, imposition of the same penalty on the company and its General Manager under the same provision of law for the same "offence" is also not sustainable in law.
5. For the reasons afore mentioned, the penalties imposed on the appellants are set aside and these appeals are allowed. However, before parting with this case, it is clarified that the appellants' plea that they are not bound to give intimation, to the proper officer of Customs of removal of goods to town before filing of Shipping Bill has not found favour with the Tribunal. A custodian of ICD, being subject to the control of the proper officer of Customs in terms of Section 141 ibid, is duty-bound to handle export goods entering the "Customs area" with intimation to, and under the supervision of, the proper officer of Customs at every stage, whether prior to or after filing of Shipping Bill. It is also observed that the procedure laid down by the Collector in Public Notice No. 6/95-Cus. ibid for handling of export goods entering a "Customs area" by a custodian appointed under Section 45 of the Customs Act should be considered as having been laid down under Section 141 of the Act.