Custom, Excise & Service Tax Tribunal
Marble City India Limited vs New Delhi on 7 January, 2026
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH,
COURT NO. I
CUSTOMS APPEAL NO. 50093 OF 2025
[Arising out of the Order-in-Original No. 51/2024/VCG/Pr.
Commissioner/ICD-Import/TKD dated 30/09/2024 passed by
The Commissioner of Customs, Inland Container Depot
(Export), Tughlakabad, New Delhi - 110020.]
M/s Marble City India Limited ......Appellant
316-319, Allied House
3rd Floor, Inderlok
New Delhi - 110 035.
Versus
Principal Commissioner of Customs, ....Respondent
Inland Container Depot(Import),
Tughlakabad,
New Delhi - 110020.
WITH
CUSTOMS APPEAL NO. 50092 OF 2025
[Arising out of the Order-in-Original No. 51/2024/VCG/Pr.
Commissioner/ICD-Import/TKD dated 30/09/2024 passed by
The Commissioner of Customs, Inland Container Depot
(Export), Tughlakabad, New Delhi - 110020.]
Mr. Saket Dalmia, Director, ......Appellant
M/s Marble City India Limited
316-319, Allied House
3rd Floor, Inderlok
New Delhi - 110 035.
Versus
Principal Commissioner of Customs, ....Respondent
Inland Container Depot(Import),
Tughlakabad,
New Delhi - 110020.
APPEARANCE:
Shri B.L. Narasimhan, Ms. Nupur Maheshwari, Shri Dhruv Matta
and Ms. Simone Jain, advocates for the appellant
Shri Ranjan Prakash and Shri Rajesh Singh, authorised
representatives of the department
WITH
CUSTOMS APPEAL NO. 50225 OF 2025
[Arising out of the Order-in-Original No. 51/2024/VCG/Pr.
Commissioner/ICD-Import/TKD dated 08/10/2024 passed by
2 C/50093 OF 2025 & 5 others
The Pr. Commissioner of Customs, Inland Container Depot
(Import), Tughlakabad, New Delhi - 110020.]
M/s Vimal Forwarders Pvt. Ltd. ......Appellant
201, Hindustan Kohinoor Industrial Premises,
2ndFloor, LBS Marg, Opp. - Surya Nagar,
Vikhroli, Mumbai - 400 083.
Versus
Principal Commissioner of Customs, ....Respondent
Inland Container Depot(Import),
Tughlakabad,
New Delhi - 110020.
APPEARANCE:
Shri Lakshmi Kumar Bhadra in person for the appellant
Shri Ranjan Prakash and Shri Rajesh Singh, authorised
representatives of the department
WITH
CUSTOMS APPEAL NO. 50847 OF 2025
[Arising out of the Order-in-Original No. 51/2024/VCG/Pr.
Commissioner/ICD-Import/TKD dated 30/09/2024 passed by
The Principal Commissioner of Customs (Import), Inland
Container Depot, Tughlakabad, New Delhi - 110020.]
M/s Shirdi Sai Shipping Service, ......Appellant
22-1-52, Kotha Agraharam Street,
Changalarao Peta, Visakhapatnam,
Andhra Pradesh - 530 001.
Versus
Principal Commissioner of Customs, ....Respondent
Inland Container Depot(Import),
Tughlakabad,
New Delhi - 110020.
APPEARANCE:
Shri Subhas Chandra Choudhury, Consultant for the appellant
Shri Ranjan Prakash and Shri Rajesh Singh, authorised
representatives of the department
WITH
CUSTOMS APPEAL NO. 52306 OF 2024
[Arising out of the Order-in-Original No. 51/2024/VCG/Pr.
Commissioner/ICD-Import/TKD dated 08/10/2024 passed by
The Commissioner of Customs(Import), Inland Container
Depot, Tughlakabad, New Delhi - 110020.]
3 C/50093 OF 2025 & 5 others
M/s Professional Impex Pvt. Ltd. ......Appellant
1st Floor, Harbans Bhavan - I, Near Syndicate Bank,
DDA Business Complex, Nangal Raya,
New Delhi - 110 046.
Versus
Commissioner of Customs (Import), ....Respondent
Inland Container Depot,
Tughlakabad,
New Delhi - 110020.
APPEARANCE:
Shri Prachit Mahajan, advocate for the appellant
Shri Rajesh Singh, authorised representatives of the department
AND
CUSTOMS APPEAL NO. 50868 OF 2025
[Arising out of the Order-in-Original No.
51/2024/VCG/Pr.Commissioner/ICD-Import/TKD dated
08/10/2024 passed by The Pr. Commissioner of Customs,
Inland Container Depot (Import), Tughlakabad, New Delhi -
110020.]
M/s Maas Infra and Logistics Ltd. ......Appellant
(formerly known as Asis Overseas
(C&F) Pvt. Ltd.,
Mhatre Pen Building, 324, A-wing,
2ndFloor,Sonepati Bapat Marg,
Dadar (W), Mumbai - 400 028.
Versus
Principal Commissioner of Customs, ....Respondent
Inland Container Depot(Import),
Tughlakabad,
New Delhi - 110020.
APPEARANCE:
None for the appellant
Shri Krishnakant Basist and Shri Rajesh Singh, authorised
representatives of the department
CORAM:
HON'BLE JUSTICE MR. DILIP GUPTA, PRESIDENT
HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)
FINAL ORDER NO's. 50023-50028/2026
4 C/50093 OF 2025 & 5 others
DATE OF HEARING :18/19.11.2025
DATE OF DECISION: 07.01.2026
P.V. SUBBA RAO
All these appeals assail the same impugned orders.
Customs Appeal No's. 50093, 50092, 50225 and 50847 of
2025 were heard on 18.11.2025. Customs Appeal No's. 52306
of 2024 and 50868 of 2025 were heard on 19.11.2025 and
orders were reserved.
2. M/s. Marble City India Ltd1 and its Director Shri
Saket Dalmia2, M/s Vimal Forwarders Pvt. Ltd., M/s
Shirdi Sai Shipping Services, M/s Professional Impex
Pvt. Ltd. and M/s Maas Infra and Logistics Ltd. filed these
six appeals to assail the orders dated 30.9.2024 and
08.10.20243 passed by the Principal Commissioner deciding
the proposals made in the show cause notice dated 17.1.20144
issued by the Directorate General of Revenue Intelligence 5 to
assail the penalties imposed on them.
3. Marble City was formed by amalgamation of two
companies M/s. P G Industries Ltd6 and M/s. Priceless
Overseas Limited7 to whom the SCN was issued. During the
period (December 2003 to April 2008), both PG and Priceless
were in the business of importing, processing, stocking and
1. Marble city
2. Dalmia
3. impugned orders
4. SCN
5. DRI
6. PG
7. Priceless
5 C/50093 OF 2025 & 5 others
selling rough marble blocks/slabs and Shri Dalmia was their
Director. During the relevant period, import of rough marble
blocks was restricted under the Foreign Trade Policy and they
could be imported only on a Special Import Licence8 issued by
the Director General of Foreign Trade9.
4. If rough marble was imported and a Bill of Entry was
filed and thereafter it was found that either the importer had
no SIL or that the SIL did not cover the full quantity of the
imported marble, it will be liable confiscation under section
111 of the Customs Act, 196210 and the importer will be liable
to penalty under section 112 of the Act.
5. Before dealing with the facts of this case, it will be
necessary to review the typical processing of imports. When
goods are imported and a Bill of Entry is filed (under section
46 of the Act) for home consumption, the Bill of Entry passes
through four Customs officers:
a) Customs Appraiser of the Appraising Group in the
Custom House who assesses the Bill of Entry and
submits to the Assistant Commissioner or Deputy
Commissioner of the group;
b) The Assistant Commissioner or Deputy Commissioner
of the Appraising Group in the Custom House
assesses the Bill of Entry under section 17 of the Act;
8. SIL
9. DGFT
10. Act
6 C/50093 OF 2025 & 5 others
c) The Customs Examiner examines the goods
physically in the import shed to ensure what is
imported is what has been declared in the Bill of
Entry and other papers, writes an examination report
and if necessary, refers the matter back the Assistant
Commissioner in the Appraising Group (examination
is also a part of assessment); and
d) The customs 'out of charge' officer issues an order
permitting their clearance for home consumption
under section 47 of the Act.
6. If it is found that import of the goods requires a licence
and the importer had no valid licence to cover the import, the
Assistant Commissioner or Deputy Commissioner of the group
will typically adjudicate the matter and confiscate the goods
under section 111 of the Act and impose penalties after issuing
a show cause notice under section 124 of the Act. If any of the
other four officers notices the lack of the required licence, he
will refer it to the Assistant Commissioner or Deputy
Commissioner of the Group for adjudication. Whenever goods
are confiscated, as per section 125, the officer may, if the
goods are prohibited and shall in respect of other goods, give
the importer an option of redeeming them by paying a fine in
lieu of confiscation (it is commonly known as redemption fine).
7 C/50093 OF 2025 & 5 others
7. While the Bills of Entry are filed online on the Indian
Customs Electronic Data Interface System11, the adjudication
process starting from issuing the SCN (oral or written),
through examining the reply, holding personal hearing and
finally passing the order are all done offline, i.e., physically. If
the matter is adjudicated, the goods are confiscated and
released on payment of redemption fine, the 'out of charge'
officer will clear the goods for home consumption after
ascertaining that the redemption fine, duty, penalty, etc. as
appropriate, have been paid.
8. DRI started an investigation into the imports of rough
marble by PG and Priceless. It was able to identify from ICES
how much marble was imported. It was able to identify how
many licences were issued by the DGFT for import of rough
marble to these two companies. It found that the
licences(SILs) issued by the DGFT did not cover the total rough
marble imported. In some Bills of Entry, the licence covered
part of the consignment and in some others, the licence did
not cover the import at all.
9. Marble City and its Custom House Agent, when asked by
DRI, clarified that whenever the imported rough marble was
not covered by the licence, the matter would be adjudicated
and on payment of redemption fine, the goods used to be
cleared. These statements were confirmed by the officers as
11. ICES
8 C/50093 OF 2025 & 5 others
recorded in paragraph 19 of the SCN and the paragraph 2.31
of the impugned order. However, since the matter was old,
DRI was not able to get copies of the adjudication orders or
physical copies of the Bills of Entry where the details of the
adjudication and the redemption fine paid, etc. may have been
recorded by the 'out of charge' officer.
10. Thus, while it was clear that the goods were imported
without adequate valid licences and also that the officers had
cleared the goods, the details of the adjudication orders and
fines paid, etc., were not available. DRI issued the SCN
proposing to confiscate the goods and impose penalties which
culminated in the impugned order.
Submissions of Marble City and Shri Saket Dalmia
11. Learned counsel for Marble City and Shri Saket Dalmia
made the following submissions:
(i) The appellant had imported rough marble after
obtaining SIL from the DGFT;
(ii) If the quantity of the marble exceeded the limit in
the SIL, it had either obtained letters extending the
quantity by the DGFT or where it was not able to
do so, the officers assessing the Bills of Entry
adjudicated the matter, confiscated the goods and
gave option of redemption. In all such cases, the
appellant paid the fines and penalties imposed and
cleared the goods.
9 C/50093 OF 2025 & 5 others
(iii) In 2013, DRI initiated investigation for a ten-year
period and asked the appellant to provide
reconciliation of the import quantity of the rough
marble blocks and licences. The appellant was able
to provide data only for five years from 2008-09 to
2013 but could not provide data for the period
2003-2008 as its documents were archived and
were destroyed in a fire accident on 14.4.2012.
(iv) DRI sought data from Directorate of Systems and
DG Systems provided whatever data was available
and cautioned DRI that the data was incomplete as
manual entries are not included in the system
data.
(v) DRI then sought to verify the statements made by
the appellant and the CHA from the officers of the
Commissionerate who confirmed that goods were
cleared only on presentation of licences or if the
licences did not cover the imported goods, the
goods were cleared after adjudication and after the
appellant paid the fine and penalties imposed.
(vi) DRI issued the SCN dated 17.1.2014 covering
1052 Bills of Entry of which the alleged excess
imports were only in respect of 252 Bills of Entry
proposing to hold the goods liable to confiscation
and impose penalties on Marble City and others.
10 C/50093 OF 2025 & 5 others
(vii) Marble City repeatedly requested DRI to provide
copies of the SILs, adjudication orders and copies
of these 252 Bills of Entry as assessed so that the
appellant could file a proper reply to the SCN but
DRI provided no records.
(viii) Aggrieved, Marble City filed Writ Petitions before
Delhi High Court and by order dated 29.8.2016,
the Delhi High Court directed the Customs
authorities to provide all Bills of Entry mentioned in
the SCN within three months and keep the SCN
proceedings in abeyance until then.
(ix) Despite the specific directions of the High Court, no
Bills of Entry were provided within three months
from the High Court's order.
(x) Later, on 9.1.2017 DRI provided copies of 62 Bills
of Entry of which 21 were not even covered by the
SCN. None of the copies of Bills of Entry had the
manual entry or details of the adjudication orders.
(xi) On 28.3.2017, DRI provided copies of 284 Bills of
Entry of which 7 were not even covered by the
SCN. None of the Bills of Entry had details of the
manual adjudication orders.
(xii) On 8.1.2024, the department provided copies of
269 Bills of Entry none of which are covered by the
SCN.
11 C/50093 OF 2025 & 5 others
(xiii) On 29.4.2024, copies of 609 Bills of Entry were
provided by the Customs department and in
response, the appellants sent a chart highlighting
the inconsistencies in the Bills of Entry provided.
(xiv) On 19.7.2024, data of 842 Bills of Entry was
provided by the DG Systems but as already
explained by DG Systems, these Bills of Entry did
not cover the details of the manual interventions.
(xv) Marble City requested the Commissioner to drop
the proceedings as it would be a violation of the
order of the Delhi High Court but the Commissioner
passed the impugned order imposing penalties of
Rs. 4,31,80,000/- under section 112 (a) (i) and Rs.
3,64,85,000/- under section 114AA on Marble City.
(xvi) The impugned order may be set aside as it was
passed in derogation of the specific directions of
the Delhi High Court in order dated 29.8.2016.
(xvii) The impugned order is based solely on
assumptions and without any documentary
evidence to support which shows non-application of
mind.
(xviii) The data provided by the department is
incomplete, deficient and insufficient for proper
adjudication.
(xix) The SCN was barred by limitation. Although section
124 does not stipulate any limitation to issue the
12 C/50093 OF 2025 & 5 others
SCN, the settled principle of law is that where the
section does not prescribe any limitation, a
reasonable period of limitation must be read into it.
Reliance is placed on the following decisions in
support.
a) State of Punjab versus Bhatinda
District Co-op Milk P. Union Ltd.12
b) Maersk Line India Pvt. Ltd. versus The
Commissioner of Customs13
(xx) The reasonable period of limitation under section
124 has been held to be five years in the following
decisions.
a) Usha Stud & Agricultural Farms (P)
Ltd versus Commissioner of Customs,
New Delhi14
b) Parekh Shipping Corporation versus
Assistant Collector of Customs,
15
Bombay
(xxi) Marble City cannot be reasonably expected to
reconcile data which is very old.
(xxii) The goods cannot be held to be liable to
confiscation under section 111(d) and 111(m) of
the Act on the ground that the appellant had
fraudulently debited SILs without even mentioning
which licence was debited against which Bill of
Entry and without providing copies of the licence.
Section 111(m) would also not apply because it is
not even the case of the department that the
12. 2007 (217) ELT 325 (SC)
13. 2024 (1) TMI 837 - Madras High Court
14. 2011 (274) ELT 365 (Tri-Del)
15. 1995 (80) ELT 781 (Bom)
13 C/50093 OF 2025 & 5 others
appellant had mis-declared description, value or
other details of the imported goods.
(xxiii) Penalties under section 112 (a) and 114AA are not
imposable in the facts of the case.
(xxiv) The impugned order may be set aside and both
appeals may be allowed.
Submissions on behalf of M/s Vimal Forwarders, M/s
Shirdi Sai Shipping Service, Professional Impex and
Maas Infra and Logistics:
12. Learned counsels for these appellants adopted the
submissions made by learned counsel for Marble City and
prayed that the penalties imposed on them may be set aside.
Submissions on behalf of the Revenue
13. Learned authorized representative for the Revenue
vehemently supported the impugned order and submitted as
follows:
(i) DRI initiated investigation into the appellant who
had, during the relevant period, imported rough
marble (import of which was restricted) in excess
of the quantities permitted in the SILs issued by
the DGFT.
(ii) In some cases, the consignments were booked
even before the issue of licences.
(iii) On reconciliation of the data of licences issued by
the DGFT to the appellant and the Bills of Entry
filed by the appellant, discrepancies were found
14 C/50093 OF 2025 & 5 others
and accordingly the SCN was issued and the
impugned order was passed.
(iv) The SCN was not time-barred because there is no
limit for issuing an SCN under section 124 of the
Act.
(v) The appellant was provided copies of all the Bills of
Entry which were available before adjudication and
therefore, it is not correct to say that the order was
passed violating the instructions of the High Court.
(vi) The appellant imported rough marble blocks in
excess of the quantities indicated in the SILs
issued by the DGFT. The appellant was not able to
reconcile the data.
(vii) The impugned order therefore, is correct and
proper and it calls for no interference.
(viii) The impugned order may be upheld and both
appeals may be dismissed.
Findings
14. We have considered the submissions advanced by
learned counsels for the appellants and learned authorized
representative of Revenue.
15. It is undisputed that PG and Priceless (which were
amalgamated into Marble City)had imported rough marble, a
good whose import was restricted and which could be imported
only on a licence issued by the DGFT. It is also undisputed that
in some Bills of Entry, the imports of rough marble werein
15 C/50093 OF 2025 & 5 others
excess of the quantities indicated in the corresponding SIL or
without an SIL covering the entire quantity. Learned
authorized representative submitted that in some cases, the
import consignments were booked by PG and Priceless even
before the issue of SIL which, however, is immaterial because
licence is required to import goods into India and not to enter
into a contract or place orders for goods. One may place an
order without a licence but at the time the goods are imported
one should have a licence covering the import.
16. The relevant period is before 2011 when there was no
system of self-assessment. Every Bill of Entry had to be
assessed by the proper officer under section 17. Assessment
has two parts- (a) determining the how much duty is payable,
compliance with restrictions, etc. based on the papers; and (b)
physical examination of the goods in the import shed. If any
discrepancies are found during physical examination, the
examining officer would refer the Bill of Entry back to the
Group Assistant Commissioner to take a decision. Once both
these processes are completed, the Bill of Entry goes to the
'out of charge' officer who issues an order under section 47
permitting clearance of goods for home consumption after
ensuring that (a) the duty has been paid and (b) the goods are
not prohibited for import. Section 46 under which the Bill of
Entry is filed, section 17 under which the duty is assessed and
section 47 under which the goods are cleared for home
16 C/50093 OF 2025 & 5 others
consumption, as they were during the relevant period, read as
follows:
17. Assessment of duty.-
(1) After an importer has entered any imported
goods under section 46 or an exporter has entered any
export goods under section 50 the imported goods or
the export goods, as the case maybe, or such part thereof
as may be necessary may, without undue delay, be
examined and tested by the proper officer.
(2) After such examination and testing, the duty, if
any, leviable on such goods shall, save as otherwise
provided in section 85 be assessed.
(3) For the purpose of assessing duty under sub-
section(2), the proper officer may require the importer ,
exporter or any other person to produce any contract,
broker's note, policy of insurance, catalogue or other
document whereby the duty leviable on the imported
goods or export goods as the case maybe, can be
ascertained and to furnish any information required for
such ascertainment which is in his power to produce or
furnish, and thereupon the importer, exporter or such
other person shall produce such documents and furnish
such information.
(4) Notwithstanding anything contained in this
section, imported goods or export goods may, prior
to the examination or testing thereof, be permitted
by the proper officer to be assessed to duty on the
basis of the statements made in the entry relating
thereto and the documents produced and the
information furnished under sub-section (3); but if
it is found subsequently on examination or testing
of the goods or otherwise that any statement in
such entry or document or any information so
furnished is not true in respect of any matter
relevant to the assessment the goods may, without
prejudice to any other action which may be taken
under this Act, be re-assessed to duty.
(5) where any assessment done under sub-section 2 is
contrary to the claim of the importer or exporter
regarding valuation of goods, classification, exemption or
concessions of duty availed consequent to any
notification, therefore, under this Act, in cases other than
those where the importer or the exporter, as the case
may be, confirms his acceptance of the said assessment in
writing, the proper officer shall pass a speaking order
17 C/50093 OF 2025 & 5 others
within fifteen days from the date of assessment of the Bill
of Entry or the shipping bill, as the case may be.
Section 46. Entry of goods on importation. -
(1) The importer of any goods, other than goods intended
for transit or transhipment, shall make entry thereof by
presenting to the proper officer a bill of entry for home
consumption or warehousing in the prescribed form:
Provided that the Commissioner of Customs may, in
cases where it is not feasible to make entry by presenting
electronically, allow an entry to be presented in any other
manner:
Provided further that if the importer makes and
subscribes to a declaration before the proper officer, to
the effect that he is unable for want of full information to
furnish all the particulars of the goods required under this
sub-section, the proper officer may, pending the
production of such information, permit him, previous to
the entry thereof (a) to examine the goods in the
presence of an officer of customs, or (b) to deposit the
goods in a public warehouse appointed under section
57 without warehousing the same.
(2) Save as otherwise permitted by the proper officer, a
bill of entry shall include all the goods mentioned in the
bill of lading or other receipt given by the carrier to the
consignor.
(3) A bill of entry under sub-section (1) may be presented
at any time after the delivery of the import manifest or
import report, as the case may be:
Provided that a bill of entry may be presented even before
the delivery of such manifest or report, if the vessel or the
aircraft or the vehicle by which the goods have been
shipped for importation into India is expected to arrive
within thirty days from the date of such presentation.
*******
Section 47. Clearance of goods for home consumption. -Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption.
18 C/50093 OF 2025 & 5 others
17. Thus, if restricted goods were imported without a licence but a Bill of Entry was filed for such goods, the import would be processed through the following officers:
a) The Appraiser during assessment.
b) The Assistant Commissioner of the Appraising Group during assessment.
c) The examining officer while examining the goods and documents.
d) The proper officer issuing the order permitting their clearance for home consumption (Out of charge officer). He can issue 'Out of Charge' only if the duty was paid and if the goods were not prohibited.
18. Unless all the above officers turn a blind eye or collude with the importer in any Bill of Entry, it is not possible for any restricted good whose import requires a licence to be cleared for home consumption without such a licence. The question that would arise is how were the goods cleared in the disputed Bills of Entry in excess of the SILs issued by the DGFT? The answer to that in the statements of the importer and its Custom House Agent was that it was the practice at that time to adjudicate all such goods which were imported without a licence and impose redemption fine and penalty. Once they have been paid, the goods would be cleared for home consumption. During investigation, DRI also sought clarification from the officers who also confirmed the practice. It is also the assertion of the appellant that in some cases, it had obtained amendment letters to the SIL from the DGFT.
19 C/50093 OF 2025 & 5 others
19. However, DRI wanted to find the adjudication orders, etc. which it could not find in the records. It had asked the appellant for reconciliation statements which the appellant could not produce beyond five years because its records were also lost in a fire. Since DRI could only get details of the Bills of Entry which were filed and the SILs which were issued by the DGFT and could not obtain copies of the adjudication orders, details of fine and penalties, etc. or even hard copies of the Bills of Entry where the details of fines and penalties imposed by the officer and paid by the appellant might have been recorded, the SCN was issued presuming that in all cases where there was a difference between the Bill of Entry and the SIL, the appellant had imported and cleared the goods without a licence.
20. It would be profitable to review how the goods actually move from the hands of the overseas exporter to the importer in India. The overseas exporter gives the goods to the Master of the Vessel or his agent who issues a Bill of Lading which is an acknowledgement of the receipt of goods and a document of title. After sailing to the port of import, the Master of the Vessel gives the goods to the Port Trust, which in turn, gives them to the custodian of ICD or CFS (usually under a document called 'equipment interchange receipt'). The custodian is licenced by the Customs and it will give the goods to the importer only when he produces (a) the Bill of Lading and Delivery Order from the Shipping Line; and (b) Bill of 20 C/50093 OF 2025 & 5 others Entry with an order clearing the goods for home consumption (out of charge) from the customs. It is impossible for any importer who imported the goods and filed the Bill of Entry to remove the goods from the Customs Area on his own unless he steals them from the custodian which is not the allegation here. Thus, in addition to the five customs officers referred to above, another check on imported goods is the custodian.
21. Before the goods are given by the custodian to the importer, the Customs officer must give 'out of charge' on the Bill of Entry and this process, as discussed above, will involve at least five officers. If the goods have been cleared from the customs area, then, it must be presumed, unless there is evidence to the contrary, that the Out of Charge was given by the officer in that Bill of Entry.
22. If the conclusion of the Commissioner in the impugned order that goods were imported and taken out of the Customs area without a licence and without the matter being adjudicated is accepted, the irresistible conclusion would be that all five officers who processed each of the disputed Bills of Entry had either colluded or has been negligent or that the custodian gave the goods to the importer without the 'Out of charge' from the Customs. There is no evidence whatsoever to this effect. The explanation given by the appellant, his CHA and the officers is that in every case, the matter was adjudicated and thereafter out of charge was given on 21 C/50093 OF 2025 & 5 others payment of fine and penalties. If that is the case, DRI cannot start another proceeding with respect to the same goods again proposing confiscation, fine and penalty. The Commissioner should have, in our opinion, considered the basic facts before passing the order.
23. We are unwilling to accept that all the goods were cleared without licences in each of the Bills of Entry by the appellant which, by implication, would mean that each of the five officers who had dealt with each Bill of Entry was either negligent or had colluded or that custodian gave the goods to the importer without 'out of charge' being given by the Customs officer. There is no evidence to the effect.
24. The appellant had filed a Writ Petition before Delhi High Court seeking copies of the assessed Bills of Entry, copies of the licences and the adjudication orders. Despite the order of Delhi High Court, they were not provided because the department had no records. The records were very old and all that the department had was what was stored in ICES. Adjudication orders, not being part of the ICES were not in the system.
25. An illustration will explain the nature of the allegations in the SCN and the findings in the impugned order. If someone goes to an office, checks the attendance register of the staff 22 C/50093 OF 2025 & 5 others which is ten years old and compares it with the calendar for that year, one can easily make out the working days on which different persons had not marked their attendance. There can be an explanation as to why a person had not marked his attendance on a particular working day ten years ago. One may have been on tour, one may have had to go for a meeting directly from home, one may have taken casual leave, one may have been sent out on some office work, etc. Now, if the person who was absent on a particular day is asked as to why he had not attended the office on a specific working day ten years ago and to produce documents to show that he was on leave or tour, etc., it is unlikely that he will have copies of the documents. Even the office may not have such old documents. Since the documents are not available, one cannot draw an adverse inference that the person was unauthorizedly absent on that day. Extending further, if the entire register for the entire year is examined one can discover all the days on which every employee had not signed in the attendance register on each working day during that entire year. It is possible that nobody may have kept copies of leave sanction, tour bills, directions to attend meetings outside the office, etc. One cannot, from this investigation, conclude that there was rampant unauthorized absenteeism in the entire office ten years ago.
23 C/50093 OF 2025 & 5 others
26. It is for the officer to first investigate, establish that the appellant had removed the goods without a licence with positive evidence and issue the SCN supported by such evidence. The inference drawn in the SCN and affirmed in the impugned order merely based on the Bills of Entry as filed and the SILs issued by DGFT is incomplete. It does not show what happened after the Bill of Entry was filed. To infer from this data that no adjudication was ever done by any officer in any of the Bills of Entry and all goods were allowed to be removed from the Customs area without any licence would imply that each of the five officers who dealt with every single Bill of Entry was negligent or had colluded without any evidence. We do not share the views of the DRI or the Principal Commissioner about the officers in the appraising group, import shed and the officers who issued the 'out of charge' in the disputed Bills of Entry; these Customs officers deserve better trust and respect. In the absence of any evidence to the contrary, it must be presumed that the goods were cleared by the officers after adjudication, etc. and that the custodian had given the goods to the importers only after the customs officer issued 'Out of Charge'.
27. Since we have found in favour of Marble City on merits, the question of limitation need not be examined. Consequently, the penalties imposed on it cannot be sustained 24 C/50093 OF 2025 & 5 others and neither can the penalties imposed on others in the impugned orders.
28. The impugned orders deserve to be set aside and are set aside. All the six appeals are, accordingly, allowed.
(Order pronounced in open court on 07/01/2026.) (JUSTICE DILIP GUPTA) PRESIDENT (P.V. SUBBA RAO) MEMBER (TECHNICAL) PK