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2016 (7) TMI 1120 - CESTAT NEW DELHI

2016 (7) TMI 1120 - CESTAT NEW DELHI - 2016 (340) E.L.T. 542 (Tri. - Del.) - Levy of penalty on courier company - charge of abetment - mis-declaration of goods - Original Authority ordered the confiscation of goods; imposed penalty of ₹ 5 lakhs on the consignee of the parcel; imposed a penalty of ₹ 1 lakh and ₹ 25,000/- on the present appellants; dropped proceedings against two customs officers. - Held that:- the Original Authority recorded that the courier bill of entry is hav .....

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n 112. He further held that there is no charge of malafide on the part of officers and also no charge of any pecuniary benefits accruing to the said officers. All these go to show that the officers have discharged their duty and the goods have been cleared after due examination. It is not clear then how the mis-declared item could be detected at the TNT hub of the courier company much away from the custom area. - Different standards have been followed by the Original Authority in examining .....

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ority did not follow consistency and arrived at different conclusions on same set of facts. - I find that while the statements given by the officers have been accepted as truth, the statement given by the employee of courier company has been discounted selectively, at least w.r.t. the fact of examination of cargo before clearance. - Charge of abetment cannot be sustained against the appellant in the facts and circumstances of the case. - No penalty - decided in favor of appellant. - Cus .....

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penalties under Section 112 (a) of Customs Act, 1962. One appellant (M/s TNT India Pvt. Ltd.) is a courier company engaged in the clearance of Courier Cargo through Customs and another appellant (Shri Rakesh Kumar Gupta) is employee of the first appellant. The brief facts of the case are that the officers of DRI, Lucknow Zonal Unit conducted certain enquiries in July, 2012 w.r.t. certain parcels consigned to one Shri P.K. Tiwari, New Delhi. On physical verification of the parcels it was found t .....

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ngs against two customs officers. Relevant to the present appeals are the alleged role of the appellants in the violations of customs provisions in the import of the impugned goods. The Original Authority held that the appellant courier company and the representative of the company have abetted the improper importation of the goods by their acts of commission and omission. The main allegation upheld by the Original Authority is that the courier company violated the provisions of Regulation 12 (i .....

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the declared address by using reliabling independent, authentic document, data or information. 2. The learned Counsel appearing for both the appellants submitted mainly on the following grounds : (a) the main appellant is an established reputed courier company known internationally and have been following the provisions of Customs Act and the Courier Regulations deligently ; (b) the parcel which has come from Hong Kong was to have been delivered through the main appellant in terms of their arra .....

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be dealt with in any manner except as may be directed by the Commissioner of Customs. It is also submitted that no person shall, except with permission of proper officer, open any packages of imported goods. As such, the appellant is not aware of the contends of the packages and acted on the basis of documents accompanying the parcels. They have not failed in any of their responsibility as they have acted as per the normal practice ; (d) the charge of abetting improper import cannot be sustained .....

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stom area and were found in the courier's hub where on physical examination mis-declared cargo was found. The Original Authority relying on the statement of customs officers exonerated them from the charge of abetting whereas the appellants have been held to be abetting the improper import on similar set of facts ; (f) the existence or non-existence of consignee in the given address cannot be pre-verified in case of 'small value cargo' and the non-existence of consignee at the given .....

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nd Slam Express Pvt. Ltd. vs. CC, Airport, Mumbai reported in 2007 (216) E.L.T. 272 (Tri. -Mumbai) to state that imposition of penalty on courier company is justified in these circumstances. 4. Heard both the sides and examined appeal records. The point for decision is the correctness of penal action against the appellants in the facts and circumstances of the case. Penalty under Section 112 (a) was imposed on both the appellants. Section 112 (a) relevant to present appeal, states : "Sectio .....

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r obligations under Regulation 12, I find it is relevant to note that proviso to Regulation 12 (1) (i) makes it clear that the rigour of obtaining authorization for clearance of import goods has been relaxed in respect of low value dutiable consignments. Regulation 3 (ga) states "low value dutiable consignments" means an import consignment other than documents, gifts and samples of an invoice value not exceeding ₹ 1 lakh. In the present case the invoice value declared is U.S. $ 1 .....

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the consignee is to be carried out and the bill for clearance can be filed only on due satisfaction of the antecedents of the consignees in respect of each such parcel. No such stipulation could be read into the regulation. 5. Further, the charge of abetment against the appellant was sought to be established on the ground that they have not fully complied with Regulation 12 as discussed above. It is clear from the provisions of Section 112 (a) that such charge can be sustained only if any perso .....

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such proposition as untenable in the facts and circumstances of the case. It is important to note that in terms of Regulation 5 the courier packages shall not be dealt with or opened except with the approval of the proper officer. In the present case, the Original Authority recorded that the courier bill of entry is having endorsement of the officer for having examined the consignments. Apparently this has been admitted by the Original Authority irrespective of the fact that the second appellant .....

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that the officers have discharged their duty and the goods have been cleared after due examination. It is not clear then how the mis-declared item could be detected at the TNT hub of the courier company much away from the custom area. The Original Authority discounted the role of officers on the ground that the way bills were not tallied with the consignment at the time of examination in the TNT hub. However, he held the charge of abetment proved against the courier company only on the ground t .....

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ocument declares the value as U.S. $ 120 the question of taking prior authorization from the consignee is not relevant. I find that different standards have been followed by the Original Authority in examining the charge of abetment - one for the customs officers the other for courier company and its employee. On the one hand he held that the officers discharged their duty though it is clear that if the examination has been done before clearance as recorded by the Original Authority, the mis-dec .....

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