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2015 (8) TMI 340 - KERALA HIGH COURT

2015 (8) TMI 340 - KERALA HIGH COURT - 2015 (322) E.L.T. 502 (Ker.) - Suspension of the courier licences - Illegitimate benefit of duty free Bona fide gifts Appellant was importing unaccompanied baggages of passengers and goods intended for trade or business in guise of bona fide gifts and illegitimately availing benefit of duty of free Held that:- once an authorisation is not produced, the courier agent becomes the importer - Tribunal decision following its own decision in the case of Indus .....

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pellants while transacting business as couriers carried on by them as per regulation No reason to interfere with order passed by Tribunal Appeals dismissed Decided against Appellant. - C.U.A. NOS. 1 TO 3 OF 2015 - Dated:- 1-6-2015 - ANTONY DOMINIC AND SHAJI P. CHALY, JJ. For The Appellant : P.A. Augustian and M.A. Baby For The Respondent : Thomas Mathew Nellimoottil, SC, CE & CST JUDGMENT Shaji P. Chaly, J. - Aggrieved by the common order in Customs Appeal Nos.21470 to 21472 of 2014 pa .....

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ds under courier mode. Proceedings were initiated against the appellants on the ground that these courier agencies authorised to act as couriers were importing unaccompanied baggages of passengers and goods intended for trade or business in the guise of bona fide gifts in order to illegitimately avail the benefit of duty free provisions granted for bona fide gifts under Notification No.171/1993-Cus. dated 16.9.1993, read with CIECR. 3. The appellants filed the bill of entry prescribed in CIECR a .....

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n the names non-existent consignees and that the consignments were split into the name of different consignees and that there was no evidence to support that the impugned goods were bona fide gifts. The common feature in all the impugned orders is that the details of such persons whose names were shown as consignees and who are found to be non-existent has not been brought on record. 5. It is the case of the appellants that the Commissioner of Customs, Trivandrum without complying with the statu .....

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d upon and without extending opportunity for cross-examination as sought by the appellants, vide its order dated 06.01.2014 the demand for customs duty and cess as proposed, with interest at the appropriate rate on the said amount, was confirmed. 6. Aggrieved by the same, appellants preferred appeals before the Tribunal. The Tribunal vide its common order, remanded the matter to the assessing authority and held as follows in paragraphs 7 to 10 respectively: "7. Even if there is no authorisa .....

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sations were available, whether authorisations were obtained, whether authorisations were handed over to customs and there is also a dispute on the issue as to whether the officer who received the authorisation and other documents has to be cross-examined or not. Learned counsel submitted that it is the claim of the appellants that they had handed over the authorisation copies to the concerned Assistant Commissioner in Customs Airport and he also submitted that all they want is the documents if .....

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8. The next question which was not considered and which had made us realise that should have been considered is the fact that customs duty has been calculated on the basis of a uniform rate and bills of entry have not been assessed. For this purpose all the bills of entry have been treated as having been filed for unaccompanied baggage and provisions have been applied. The learned AR relied upon Section 44 of Customs Act, 1962 to submit that Department was right in undertaking the classificatio .....

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ration to that effect has to come from the consignor. If it is not unaccompanied baggage, the declaration has to come from consignees. Since we have only considered the stay application, we have to accept the fact that whether the Department has proper evidence to show that these goods were unaccompanied baggages and therefore they have to be assessed as such cannot be answered by us since we are remanding the matter, we would not like to draw any conclusion. 10. We have already held in Indus Lo .....

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n need not be kept, for the earlier period the department cannot reopen the issue unless there is evidence available to show that the authorisation was not available and the consignments were fictitious. For the period of one year also, the break-up of amount is not available and what is the correct rate of duty is to be determined. Under these circumstances, it would be appropriate that the matter should be remanded at this stage itself. Accordingly, all the impugned orders are set aside and th .....

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. 8. Even though several contentions are raised in the appeal memorandum, counsel for the appellants has confined his arguments only to one finding contained in paragraph 10 which is quoted hereunder:- "We have already held in Indus Logistic's case that once an authorisation is not produced, the courier agent becomes the importer". 9. The counsel further contended that with such a finding of the Appellate Tribunal, it will not be possible for the appellants to put forth their case .....

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and furnishing of security.- The Commissioner of Customs shall require the applicant to enter into a bond in such form with a security of [ten lakh] rupees in case of major international airports of Mumbai, Delhi, Calutta and Chennai and five lakh rupees in case of other airports and Land Customs Stations in cash or in the form of postal security or bank guarantee or National Savings Certificate in the name of the Commissioner of Customs for complying with the provisions of the Customs Act, 196 .....

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egulation 10 or has intimated in Form A to the Commissioner of Customs having jurisdiction over the Customs station from where he has to transact the business, shall furnish the bond and security as specified under regulation 11 for each Customs station. Regulation 13. Obligations of Authorised Courier.- An authorized courier shall - (a) obtain an authorisation, from each of the consignees of import goods for whom such Courier has imported such goods or consignors of such export goods which such .....

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egulations made thereunder and in case of non-compliance thereof shall bring the matter to the notice of the Assistant Commissioner of Customs or Deputy Commissioner of Customs; (c) exercise due diligence to ascertain the correctness and completeness of any information which he submits to the proper officer with reference to any work related to the clearance of import goods or export goods. (d) not withhold information communicated to him by an officer of Customs, relating to assessment and clea .....

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advantage or by the bestowing of any gift or favour or other thing or value; (g) maintain records and accounts in such form and manner as may be directed from time to time by an Assistant Commissioner of Customs or Deputy Commissioner of Customs and submit them for inspection to the said Assistant Commissioner of Customs or an officer authorised by him, wherever required." 10. By placing reliance on regulation 11 counsel submitted that the maximum liability prescribed under regulation 11 is .....

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ble, on any goods taken clearance by the authorised courier if in the opinion of statutory authorities the same cannot be recovered from the importer or the exporter. Apart from this, as per Regulation 13 an obligation is cast on the authorised courier to obtain an authorisation from each of the consignees of the import goods for whom such courier has imported such goods or consignors of such export goods which such courier proposes to export to the effect that the authorised courier may act as .....

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contemplated under the regulations. Thus a duty is cast on the authorised courier to act on behalf of the consignor and consignee and suffer the consequences as has undertaken by them under the Regulations and the bond furnished to the statutory authority. Therefore, having regard to the aforesaid facts and circumstances of the case and the regulations, we are of the considered opinion that the finding of the Appellate Tribunal cannot be found fault with and we hold so. 12. The counsel for the .....

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