TMI Blog2013 (3) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty imposed by the adjudicating authority under Section 114A of Customs Act, 1962 was unwarranted and was correctly set aside by the first appellate authority. As regards penalty under Section 112 of Customs Act, 1962 imposed on the proprietor of the courier firm can be invocable as it is undisputed that he has filed a courier Bill of Entry and the consignment which was sought to be cleared under courier regulations, is confiscated by the lower authorities. The respondent courier firm or its proprietor is not in appeal against absolute confiscation of the cigarettes by the first appellate authority. In such a situation, the provisions of Section 112(a) of Customs Act, 1962 can be invoked against the firm or its proprietor, as the proprietor and the firm are not different entities. As the proprietor of the courier firm was not in India when the consignment was received and travelling abroad, ends of justice would meet if the penalty imposed on the said proprietor is reduced to Rs. 25,000/-. Accordingly, I modify the order of the first appellate authority to the extent that Shri Sujal Patel, Proprietor of M/s. ACX International is liable to be imposed by a penalty of Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to act as an agent of any of the ten consignees of the aforesaid import goods; all the addresses of the purported consignees given by the respondent were found incomplete/fake. To avail the benefit of Notification No. 171/93-Cus., dt. 16-9-1993, the imported goods were declared as gifts, whereas the consignment was in commercial quantity having value exceeding the value of Rs. 10,000/-, the value defined for bona fide gift in the said notification and as per the definition of free gift in the Regulation 3(d) of Courier Imports Exports (Clearance) Regulations, 1998. Holding, prima facie, that as the goods in question could not be classified as gift and were actually dutiable, the respondent No. 1 was required to file Courier Bill of Entry CBE-V or CBE-X. However, it was alleged that they filed Courier Bill of Entry CBE-IV. After due investigation, a Show Cause Notice bearing F.No. VIII/48-06/SIIB/09, dt. 18-8-2009 was issued to the respondent No. 1 proposing to (a) confiscate the imported goods; (b) demand the duty amounting to Rs. 5,22,488/- under Section 28 of Customs Act, 1962 along with interest under Section 28AA/28AB of Customs Act, 1962; and (c) impose penalty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddress of the consignee. As per Rule 13 of the said regulation, the authorized courier has to obtain an authorization from each of the consignee of the imported goods. The details given in such authorization by the consignee such as the correctness of Importer Exporter Code (IEC) Number, identity of his client and the functioning of his client in the declared address by using reliable, independent authentic documents, data or information should be verified before filing Courier Bill of Entry in Form CBE-I, II, IV to Customs authority. Investigation by SIIB clearly found that they had not taken authorization from any of the consignees. It is not disputed that the consignees are fictitious entities and not traceable and the same fact was accepted by authorized courier. The Courier company has not placed on record any evidence that they had informed the authorities about their lack of knowledge about the consignees and about the absence of letters from authority etc. Contrary to this in CBE-IV filed by them, they declared that they have obtained authorizations from the consignees. In the absence of any information about the consignees as well as detailed invoices, M/s. ACX Internation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of the Customs duty on the Courier company. As is already reproduced by me, I find that the first appellate authority has modified the order of the adjudicating authority and has ordered for absolute confiscation of the goods. On such absolute confiscation of the goods, the Revenue has not preferred the appeal in their grounds of appeal. If that be so, in my considered view, no demand of duty arise as once there is absolute confiscation, the clearances of the goods do not take place from the Customs area. 8. Now, coming to setting aside of the penalties under Section 114A of Customs Act, 1962, the first appellate authority has recorded the following :- 15. The entire procedure relating to clearance of import cargo has been laid down keeping in mind that the authorized courier is merely an agent of the consignee in India, and that in the case of any mis-declaration, it is the consignee who will be charged for offence, and not the courier, provided an authorized courier follows the procedure prescribed for them and keep their obligations. The most important obligation or requirement of an authorized courier is to obtain authorization from the consignee. 16. As per the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 is as under : The condition of the said bond shall also be that the applicant shall agree to pay the duty, if any, not levied or short levied, with interest if applicable on any goods taken clearance by the authorized courier if the option of the Assistant Commissioner of Customs or Deputy Commissioner of Customs the same cannot be recovered from the importer or the exporter. Thus, in respect of demand of duty only, recovery can be made from an authorized courier, if in the opinion of Assistant Commissioner of Customs or Deputy Commissioner of Customs the same cannot be recovered from the importer or the exporter. In other words, there is no other liability of the courier company if the goods are not found as per description in the CBE-IV or there is (are) any other violation (s). This provision is invocable only if courier material was already cleared by respective consignee, and not to a case where importer of the material is not available and the goods are still in the Customs area. 17.2 In the present case, the respondent-department has held M/s. ACX International as the real consignee and owner of the impugned goods on the grounds that they filed Bill of Entry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st as the case may be, determined under the provisions of Customs Act, 1962. It is clear from the facts on record that the respondent did not import consignment and is not liable to pay the Customs duty as per the provisions of Customs Act, 1962, as he has filed courier Bill of Entry in proper prescribed format. This fact being undisputed, in my view, the penalty imposed by the adjudicating authority under Section 114A of Customs Act, 1962 was unwarranted and was correctly set aside by the first appellate authority. 10. As regards penalty under Section 112 of Customs Act, 1962, I find that said penalty has been imposed on the proprietor of the courier firm M/s. ACX International. In the factual matrix of this case, I find that the adjudicating authority as well as the first appellate authority has ordered for confiscation of the disputed consignment of cigarettes. The first appellate authority has even ordered for absolute confiscation of the said cigarettes under Section 111 of Customs Act, 1962. As has already been pointed out and noted by me that the respondent being a courier company, has filed a courier Bill of Entry. The penal provision under Section 112 of Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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