When can a Commissioner approve a custodian under Section 45(1) of the Customs Act despite the saving clause?

Only where no other law fastens the duty. If any other enactment prescribes that a particular person shall remain in custody of the imported goods unloaded in a customs area and also fastens customs duty for pilfered goods on them, the Commissioner has no powers to approve any other person and cannot issue a notification under Section 45(1). It is only when, under any other law for the time being in force, no person has been fastened with a liability to pay customs duty in respect of pilfered goods that the Commissioner can approve a person under sub-section (1) of Section 45, so that the person approved assumes the obligation contemplated under sub-sections (2) and (3).

Customs Act, 1962 — s.13 — s.45 — Major Port Trusts Act, 1963 — s.42 — s.43 — Indian Contract Act, 1872 — s.148 — Saving clause and non obstante clause — Custodian of imported goods — Duty on pilfered goods — Customs Act, 1962 — s.45(1) — Saving clause — Power to approve a custodian — Held: Under the saving clause in sub-section (1) of Section 45 the Commissioner has no powers to approve a custodian where some other law itself fastens customs duty for pilfered goods on a person; only when no such liability exists can he approve. (¶6) Customs Act, 1962 — s.45(3) — Major Port Trusts Act, 1963 — s.43 — Source, nature and object of the two liabilities — Held further: The liability of the Board under Section 43 is a bailee's civil liability towards the owner of the goods and is conditional; Section 45(3) fastens an independent and absolute statutory liability to pay customs duty to the revenue. (¶6) Customs Act, 1962 — s.13 — s.23 — Pilferage distinct from loss of goods — Held further: Pilferage of goods in a customs area is not loss of goods simpliciter, and as pilferage is not dealt with under the Major Port Trusts Act, the saving clause under sub-section (1) of Section 45 does not apply. (¶6) Customs Act, 1962 — s.45(1) — s.45(3) — Notification dated 11.10.2000 — Valid — Held further: A Notification approving the Port Trust as custodian cannot be found fault with merely because the custody of the goods is otherwise governed by the Major Port Trusts Act. Appeal disposed of. (¶6, 7)

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