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2015 (12) TMI 1431 - MADRAS HIGH COURT

2015 (12) TMI 1431 - MADRAS HIGH COURT - TMI - Restoration of petitioner's courier license - seizure of goods since the goods were smuggled into India through a false declaration and in violation of Foreign Trade Policy, 2009-14 and the Customs Act, 1962 - unauthorized criminal act of an employee outside the purview of his employment - Held that:- Similar courier parcels were smuggled for 85 times for the past several months in the same modus by the Petitioner and that the Petitioner cannot clai .....

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ilable for the petitioner as per Section 129(A) of the Customs Act, 1962, since the said Section provides an efficacious alternative remedy before the Appellate Tribunal against the impugned order. There is also no justifiable grounds to bypass this appeal remedy. Further the issues pointed out by the Petitioner as well as the Respondents are questions of fact and the allegations that the Petitioner had earlier involved around 85 times and illegally cleared such goods against the Regulations, wh .....

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. 29987 of 2014 MP. No. 3 of 2015 - Dated:- 8-12-2015 - R. Mahadevan, J. For the Petitioner : Mr. Satish Parasaran For the Respondent : Mr. Xavier Felix, SCGSC ORDER This Writ Petition is filed to issue a Writ of Certiorarified Mandamus to call for the records on the file of the 1st Respondent in No.S2/157/2014-CCO (Precv Legal), dated 23.7.2014, confirming the order of the 2nd Respondent vide Order-in-Original No.289/2014-AIR, dated 28.4.2014 and quash the said orders and to restore the Petitio .....

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hennai for onward distribution by the Petitioner. To undertake the customs clearance of these import consignments, their employee Naveen Kumar was present at the Chennai courier terminal. Upon unloading of air consignments, the flight personnel handed over (58) pieces at the user facility of courier terminal. Based on a specific intelligence, Officer of DRI, Chennai Zonal Unit obtained the house airway bill No.008865200645, dated January 18, 2013 and statement of consignee details from custodian .....

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ras, radio receivers and watches were found. Since the radio receivers were unusually heavy, DRI opened the same to see packets, containing gold jewellery. The DRI assessed the total value of seized goods as ₹ 3,32,51,885/- and seized the same since the goods were smuggled into India through a false declaration and in violation of Foreign Trade Policy, 2009-14 and the Customs Act, 1962. Thereafter, the DRI issued summons to various employees and personnel in charge of clearance in the Peti .....

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13, bearing Ref.No.S.MISC.322/2013-Courier Cell, requiring the Petitioner to show cause as to why the registration of the Petitioner, as an 'authorised courier' (registration No.25/2001 valid till August 1, 2017) granted by the Commissioner of Customs (Air Port) under Regulation 10 of the Courier Regulations should not be revoked and further the bank guarantee of ₹ 10 lakhs furnished by the Petitioner should not be forfeited. Upon receipt of the above said show cause notice, the Pe .....

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nt a representation dated 18.6.2014 to the 1st Respondent for due consideration on merits, as prescribed under Regulation 14(2) of the Courier Import and Export (Clearance) Regulations. Despite the above representations made by the Petitioner, the 1st Respondent by the impugned order dated 23.7.2014, rejected the above representation of the Petitioner and confirmed the order dated 28.4.2014. Hence, this Writ Petition has been filed for the relief as stated above. 3. The Respondents filed a count .....

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ian of the courier terminal at Chennai Airport. As per the said air way bill, 58 pieces of courier parcels have been shipped by M/s.Universal Courier Express Pvt Limited, Singapore to M/s.Esquire Pvt. Limited, Chennai. b. The DRI Officers identified 58 pieces covered by the said airway bill and the same were found to be packed in cartons, packets, woven poly bags etc. Shri Vijay submitted a statement showing the courier wise break up of the said 58 pieces. The Officers based on the said statemen .....

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bers H9358721379 and H9358720718 along with invoice and packing list bearing No.57487 dated 17.01.2013. The shipper of the two consignments covered by the said two airway bills was found to be M/s.JRG TEC Pvt. Limited, Singapore and the receiver was shown as Mr.Gauri Nandanam, 47 DSR Vishnu Plaza,JN Road, Thiruvallur, Chennai 602001. As per the said invoice cum packing list, the cartons were declared to contain 50 numbers of booklets, 10 numbers of cables and accessories and 50 numbers of printi .....

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ng its inside components. The total value of the impugned goods were arrived at ₹ 3,32,51,885/-. As the impugned goods were out rightly smuggled into India without any declaration and by concealment, the officers seized the same under a mahazar dated 18.01.2013. c. Verification at the consignee address i.e. 47, DSR Vishnu Plaza, JN Road, Tiruvallur, Chennai 602001 for GauriNandanam, revealed that no such person was available by the said name at the said address. The case was investigated b .....

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#8377; 10 lakhs should not be forfeited on the grounds mentioned under the provisions of Regulation 14. After following due procedure, the adjudicating authority vide Order-in-Original No. 289/2014/AIR, dated 28.4.2014, held that the authorised courier has failed to observe the obligations as listed in Regulation 13 and ordered revocation of registration granted to the Petitioner in terms of Regulation 14(1) and further ordered forfeiture of ₹ 10 lakhs from the security deposit of the Peti .....

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tioner has not exercised due diligence to ascertain the correctness and completeness of information and reference to subject import clearance as required under Regulation 13(c) and not furnished complete information to the proper officer as required under Regulation 13. No details were maintained about the consignees in respect of subject 87 consignments and thereby violated the regulation 13(g) and failed to verify the antecedents, correctness, identity of their clients and failed to verify as .....

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ier Imports and Exports (Clearance) Regulations, 1998 and the provisions of Section 140 of the Customs Act, 1962 and that when there is no case made out against the Petitioner, revocation of licence and forfeiture of bank guarantee are not sustainable and that the 1st Respondent has repeated the order of the 2nd Respondent verbatim, without considering the issues and the representation of the Petitioner on merits, which shows non application of mind and that the Petitioner cannot be held liable .....

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(2) of the Customs Act, 1962, for the acts of the agent, the Principal cannot be held liable and that Regulation 2(2)(d)(iv) clearly stipulates that the Courier Regulations will not apply to imports, pertaining to precious and semi-precious stones, gold, silver in any form and hence, the impugned order is liable to be set aside. 5. The learned Standing Counsel for the Respondents contended that on earlier occasions also, it was detected that similar courier parcels were smuggled for 85 times for .....

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77; 3,32,51,885/- seized from the two live courier parcels that the Petitioner failed to comply with Regulations 13(a), (c), (e), (g) and (i) of the Regulations and that the 1st Respondent, considering the facts of the case, representation of the Petitioner and also the order of the 2nd Respondent, passed the impugned order in detail, rejecting the representation of the Petitioner. The learned standing counsel further contended that the impugned order has been passed for revocation of the licenc .....

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r dismissal of this Writ Petition. 6. This court heard and considered the submissions made by the learned counsel on either side and also perused the materials placed on record. 7. According to the Petitioner, without considering the issues and the representation of the Petitioner on merits, the impugned order has been passed and the Petitioner cannot be held liable for an unauthorized act of an employee, without the knowledge of the Petitioner and they had no knowledge of misdeclaration of cont .....

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ns with due diligence and not complied with the Regulations under which the Petitioner was issued with the licence and has violated the provisions of the Act and that there is an alternative and efficacious appeal remedy available to the Petitioner. 9. The following decisions have been relied on by the learned counsel for the Petitioner:- 1. 2014 302 ELT 161 Del (Ashiana Cargo Services Vs. Commissioner of Customs) 2. 2011 186 ECR 0314 AP (The Commissioner of Customs and Central Excise Vs. H.B.Ca .....

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ne into, as the disputed questions of facts cannot be decided by this Court. 11. In the decision of this Court reported in CDJ 2014 MHC 5840 (Socomec UPS India Pvt. Limited Vs Commissioner of Customs (Appeals), Chennai and another), which was rendered after following the decision of the Honourable Supreme Court reported in 1995 (75) ELT 13 (SC) Liberty Oil Mills Pvt. Ltd., v. Collector of Central Excise, it has been held as under:- 13. Before this Court ventures into the factual and legal submis .....

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ave been raised by the petitioner to justify their action in by-passing the appellate remedy. Learned counsel for the petitioner also did not venture to make any submissions as to why the petitioner should not be directed to avail the alternate remedy. His contention was that the exemption notification is clear in its terms and the respondents cannot insist upon the end-use certificate, which is not contemplated in the notification, therefore, the petitioner has approached this Court. 19. The Ho .....

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