Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (4) TMI 1051 - KARNATAKA HIGH COURT

2015 (4) TMI 1051 - KARNATAKA HIGH COURT - 2015 (324) E.L.T. 558 (Kar.) - Forfeiture of the security furnished by petitioner in terms of Regulation 14(1) of Courier Imports and Exports (Clearance) Regulations, 1998 - sub-contracting - On an inspection being conducted and offence report was made by the Joint Commissioner, Air Cargo Complex, Bengaluru, which was to the effect that petitioner did not engage itself in the international transportation of goods i.e., collecting and delivering of goods .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ns, without obtaining written permission of the Commissioner of Customs.

Held that:- In view of the fact that Commissioner of Customs instead of revoking licence had taken a lenient view and forfeited the bond amount, cannot be held either as being without authority or being disproportionate to prove infraction or not being in consonance with the Courier Regulations.

Writ petition is hereby dismissed with costs. - Petitioner shall pay costs of ₹ 10,000/- to respondent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

toms has ordered to forfeit the security furnished by petitioner in terms of Regulation 14(1) of Courier Imports and Exports (Clearance) Regulations, 1998 (for short Courier Regulations ) by rejecting the representation of petitioner. 2. Petitioner herein is a holder of Authorized Courier Registration issued under Courier Regulations by respondent valid upto 11-6-2021. An offence report was made out by Joint Commissioner of Customs, Air Cargo Complex, Bengaluru to the effect that respondent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to petitioner as to why Courier Registration issued to petitioner should not be revoked and security furnished by petitioner should not be forfeited in terms of provisions of Regulation 14(1) of Courier Regulations. 3. On reply being submitted twice and adverting the contentions raised by authorized representative of petitioner, Commissioner of Customs has dealt with ail the three contentions raised by authorized represenrntive of petitioner and a finding came to be recorded by order dated .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vities. In the said letter, Esquire Express have requested the department to take on record certain facts (7 of them) for consideration of their request for registration as Autliorized Courier. None of these, as already mentioned, indicate outsourcing of any of the activities. In fact, the agreement with Universal Express is dated 5-3-2007 and was already in operation as on 15-6-2011. Therefore, nothing prevented Esquire Express from expressly bringing this agreement on record, on 15-6-2011, and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, there was also no cause for them to assume that outsourcing had the tacit approval of the department. 12.3 Coming to the second set of submissions made on 27-6-2014, it is admitted by Esquire Express that the activity of door to door delivery had been outsourced in two of the three cases. They have, accordingly, sought ex-post facto approval in these cases. In the third case, as per the Flow Chart-Ill, it is the Universal who have outsourced the activity relating to filing of CBE-I at Ban .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

so in respect of export goods. A plain reading of these Regulations clearly indicates that the procedure so specified relates to filing of documents with Customs and handling of goods while in customs control. Obviously, these Regulations do not specify all the functions which an Authorized Courier is required to carry out. On the other hand, the definition of Authorized Courier as contained in Regulation 3(a) and which has been relied upon in the show cause notice, clearly indicates that the A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

be that the Esquire Express cannot be allowed to operate as an Authorized Courier, an eventuality which they are so stridently attempting to avoid. Suffice it to say, it is a self defeating argument. 13. As brought out herein above, an Authorized Courier is required to undertake international transportation of goods on a door to door delivery basis. Esquire Express, by way of aforesaid agreements, have outsourced the activities related to door to door delivery and some other activities to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

into agreements with two separate firms by outsourcing its licensing activity namely which related to door to door delivery to said entities. Undisputedly, petitioner did not obtain prior permission from the Commissioner of Customs which is mandatory under Courier Regulation 13(j) and thereby petitioner had violated the terms agreed to be adhered to as prescribed in the conditions of bond executed by it. As noticed by the Commissioner of Customs this default of petitioner had continued for a pe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ntions raised was of the view that forfeiture of security amount was inconsonance with the Courier Regulations and act of petitioner being in contravention of Regulation 13(j), it was held by respondent that order passed by Commissioner of Customs forfeiting the security is proper and there being no infirmity in the said order, representation of petitioner came to be rejected. 6. Assailing said order petitioner is before this Court contending inter alia that Regulation 14(1) of Courier Regu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s only procedural irregularity and said Act is not prohibited under the Courier Regulations. It is also contended for such procedural infraction Commissioner of Customs was not justified in forfeiting the amount and such forfeiture does not appeal to the doctrine of proportionality of punishment. It is also contended that forfeiture of security is an act of deterrent and has curtailed the expansion plans of petitioner s business in other areas. By way of alternate submission he also contends tha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ted. Hence, petitioner seeks for grant of prayer sought for in the writ petition. 7. At this juncture, Sri Shivadass. G, learned counsel appearing for petitioner would submit that contentions raised in the writ petition with regard to interpretation of language employed in Courier Regulation 14 is not pressed. Memo is filed to the said effect and same is placed on record and said issue is not delved upon in this writ petition in view of memo filed. 8. Per contra, Sri Jeevan J. Neeralgi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ained from doing so and has only forfeited the amount and as such, there is no infirmity in the order passed by Commissioner and as such, he prays for dismissal of the writ petition. 9. Having heard the learned Advocates appearing for parties and on perusal of case records and also bestowing my careful attention to the contentions raised at the bar it requires to be noticed that petitioner has obtained Courier Registration as per Courier Regulations on 26-7-2011 and has been carrying on its .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Cargo Complex, Devanahalli, Bengaluru for import and exports of goods through courier mode. On an inspection being conducted and offence report was made by the Joint Commissioner, Air Cargo Complex, Bengaluru, which was to the effect that petitioner did not engage itself in the international transportation of goods i.e., collecting and delivering of goods as per Courier Regulations, it had outsourced its job by appointing agents namely M/s.ADP Express Private Ltd. to act as an agent to their Ho .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ission before entering into such agreements with these two companies referred to supra. Accordingly, a show cause notice came to be issued on 8-5-2014 as to why Courier Registration issued to petitioner should not be cancelled and the amount furnished by petitioner way of security by executing a bond should not be forfeited. 10. Reply submitted to show cause notice on 28-5-2014 by petitioner indicated that non obtaining of such permission is only procedural infraction and as such, it was co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in the persona] hearing held on 12-6-2014 and it was attended to by the learned Advocate appearing for petitfoner as well as Official of petitioner - company. Respondent after considering all the contentions raised in the reply dated 28-5-2014 and 27-6-2014 noted that alleged agreements entered into between tlie petitioner and M/s. ADP Express Pvt. Ltd., was on 3-1-2012 and as on the date of submission of communication dated 15-6-2011, Annexure-D, there was no contract for outsourcing at all and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

approval of outsourcing and submission made by petitioner that it is M/s. Universal Courier Pvt. Ltd., who have outsourced the activity relating to filing of CBE-1 at Bengaluru through petitioner and as such, petitioner was not under obligation to obtain permission, came to be accepted. On this amongst other grounds as indicated in the order dated 31-7-2014, Annexure - B, the registration granted to petitioner was not revoked but the security furnished by petitioner was forfeited in terms of Reg .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f these regulations; (c) a misconduct on the part of the Authorised Courier : Provided that no such revocation shall be made unless a notice has been issued to the Authorised Courier informing him the grounds on which it is proposed to revoke the registration and he is given an opportunity of making a representation in writing and a further opportunity of being heard in the matter, if so desired : Provided further that, in case the Commissioner of Customs considers that any of such grounds .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ndicate that Principal Commissioner of Customs and Commissioner of Customs, as the case may be, may revoke the registration of an authorized courier and also order forfeiture of security on any of the ground specified to in (a) to (c) thereunder. Clause (a) would indicate that in the event of Authorized Courier failing to comply with the conditions of bond executed under Regulation 11, it would entail in revocation and forfeiture. Likewise, failure of Authorized Courier to comply with any of the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

elying upon the communication dated 15-6-2011, Annexure - D petitioner has made an attempt to take umbrage under it to buttress its argument that Department had already been intimated of petitioner s intention to expand its business at Hong Kong and Singapore and as such, it was awaiting further instructions from the Department, to stave off its obligation of obtaining written permission as contemplated under Regulation 13(j). At the cost of repetition, it requires to be noticed that as on the d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as being without authority or being disproportionate to prove infraction or not being in consonance with the Courier Regulations for reasons more than one: Firstly, Regulation 14(1)(b) would clearly indicate that when there is infraction or violation of Courier Regulation, authority would be entitled to forfeit the bond amount. Secondly, when there is violation of any of the conditions of bond executed by the Authorized Courier under Regulation 11 it would result in authority invoking forfeitur .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version