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2016 (5) TMI 125

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..... r Section 108, by an authorized representative. Section 146A(2) provides that an authorized representative would include a relative/regular employee/customs broker licensed under Section 146/legal practitioner/person who has acquired such qualification as may be specified. Similarly, Section 147 of the Act provides for liability of principal and agent. Section 147(1) provides that where the Act requires anything to be done by the owner/importer/exporter, the same may be done by his agent. Confiscation/seizure of goods would not fall within the meaning of “import of goods” as used in Section 146 of the Act and Regulation 2(c) of the Customs Broker Licensing Regulations, 2013. Such confiscation being penal in nature cannot be termed to be a part of the duty of a custom agent. Service would have to be effected on the owner of the goods personally or through agent so specifically authorized to accept. The right of owner of goods cannot be defeated without prior notice on him. Hence, the contention of the appellant that service of the show cause notice could also be effected on the Custom Agent in view of Sections 146, 146A & 147 of the Act is a contention without merits and the view .....

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..... ious representations of the respondent, the goods were not released. 4. On 26.11.2014, the appellants intimated to the respondent the conditions for provisional release of the goods. The respondent was directed to submit PD Bonds and bank guarantees for different amounts against the two bills of entry. The amounts were based on a provisional re-assessment of the price done by the appellants. 5. The appellants, in the meantime, allegedly issued a show cause notice dated 23.01.2015 to the respondent to show cause as to why the time limit for issuance of show cause notice should not be extended in terms of the provisions of Section 110 (2) of the Customs Act, 1962 for a further period of six months due to expected expiry of six months from the date of the panchnama. A personal hearing was proposed to be held on the same date. It is urged by the respondent that the Commissioner of Customs without providing any personal hearing to the respondent vide its order which was also dated 23.01.2015 extended the period for issuance of show cause notice for a further period of six months from the date of panchnama. It was the contention of the respondent that they were never served with an .....

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..... stitching on the two sides was so loose that even for the sake of making quilts, the concerned side would have to be stitched again i.e. stitching was redundant. 7. It was urged that as the investigation in the matter could not be completed within six months from the date of detention due to non-receipt of test report and expert‟s opinion, it was necessary to take steps to extend the period of detention in terms of proviso to sub-section 2 to Section 110 of the Customs Act,1962 (hereinafter referred to as the Act‟). Hence, a show cause notice was issued to the respondent on 23.01.2015 for extension of time for six months. The notice was duly served on the authorized customs broker of the respondent on the said date with a request to appear for a personal hearing either at 1230 hours or 1430 hours on the same date. The customs broker submitted a letter on the same date conveying that they did not want any personal hearing on behalf of the importers. It is only thereafter that the impugned order dated 23.01.2015 was passed by the Commissioner of Customs extending the period by six months. Reliance was placed on Sections 146, 146A and 147 of the Act to submit that auth .....

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..... 6097564 and 6097566 both dated 15.07.2014 and seized by panchnamas dated 25.07.2014. However, the order clarifies that the present order would not in any manner whatsoever affect the investigation which was underway. It is only the seized goods which would have to be returned to the respondent and no more inasmuch as the appellant would be free to continue their investigation and proceed to the next step towards trial by complying with the provisions of Section 124 of the Act. 9. We have heard the learned counsel for the parties and gone through the record. 10. Learned counsel appearing for the appellant has submitted that the goods were actually detained under Section 17 (2) of the Customs Act and there was no confiscation under Section 110 of the Act. Hence, it is his submission that Section 110 (2) of the Act had no application and there was no question of permitting return of goods to the respondent. He has also reiterated the submissions made in the counter affidavit contending that the service of show cause notice on the customs agent was valid service. 11. We are not impressed by the submissions of the learned counsel for the appellant. A perusal of the impugned or .....

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..... if for some reason, it cannot be served, by affixing it on the notice board of the customs house. The said Section does not provide for service of show cause notice on a customs broker/customs agent. 15. In this context, reference may be had to the said Section 153 of the Act prior to its amendment in 2012. Un-amended Section 153 reads as follows: 153. Service of order, decision, etc.- Any order or decision passed or any summons or notice issued under this Act, shall be served,- (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent. (b) if the order, decision, summons of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house. Hence, under the un-amended provisions of Section 153, an agent could also be served an order, or decision, or summons or notice issued under the Act. Clearly the amendment has been introduced to ensure service on the person concerned. 16. In the present case, none of the procedures as stipulated under Section 153 of the Act were followed by the appellant while serving a show cause .....

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..... his agent. 20. The Section dealing with the functions of a custom agent is Section 146 of the Act. This Section defines the role of a custom agent as relating to the business of entry or departure of a conveyance, or the import or export of goods at any customs station. 21. Similarly, Rule 2(c) of the Customs Broker Licensing Regulations, 2013 states as follows: 2(c) Customs Broker means a person licensed under these regulations to act as agent for the transaction of any business relating to the entry or departure of conveyances or the import or export of goods at any Customs Station. Hence, even as per these regulations, a customs broker acts as agent for the transaction of the business relating to entry or departure of conveyance or import or export of goods at any Customs Station. 22. In this case as we are dealing with import, Import is defined under Section 2(23) of the Act, which reads as follows: 2(23). import , with its grammatical variations and cognate expressions, means bringing into India from a place outside India. In our opinion, confiscation/seizure of goods would not fall within the meaning of import of goods as used in Section 14 .....

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