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2016 (11) TMI 903 - CESTAT MUMBAI

2016 (11) TMI 903 - CESTAT MUMBAI - TMI - Authorized Courier - revocation of registration - business of clearing express cargo imported / exported through Mumbai in the Courier Mode as Authorized Courier - violations of the Couriers Imports & Exports (Clearance) Regulation, 1998 - Held that: - It is not in dispute that the Appellants had submitted in details as to how they had complied with the KYC verifications in the case of M/s. Smashing and other past clearances. They also informed about the .....

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formed about the steps taken to even revamp their website. No serious infringement of KYC verification leading to any significant revenue loss was pointed out. even in the Show Cause Notice. We have also seen that the Respondent himself has not considered violation of the KYC norms, as serious enough to merit of suspension. - The Appellant and its employees have already faced much hardship and have been deprived of their livelihood for a considerably long period since suspension of their Cou .....

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ant. - Appeal No. C/87630/15 - Order No.A/86736/16/CB - Dated:- 23-3-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Atul Nanda, Sr. Advocate with Shri Sanjay Agarwal, Advocate, for Appellant Shri M.K. Sarangi, Dy. Commr (AR), for Respondent Per: M.V. Ravindran The instant appeal is against the Order-in-Original dated 12.12.2014 passed by the Respondent Commissioner revoking the registration as a Courier being Courier Code No. MUM/AP/COUR/62/2007, valid .....

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in India, which requires compliance of the provisions of the Customs Act, 1962 read with Courier Import and Export (Clearance) Regulations, 1998 (as amended). The Appellants claim of having on their rolls more than 350 employees. 2.2 Pursuant to grant of registration to act as an Authorized Courier, the Appellants executed bond and furnished security deposit of ₹ 10 lakhs, in terms of Regulation 11 of the Courier Imports and Exports (Clearance) Regulations, 1998 (as amended). 2.3 In/or ab .....

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ort documents were not filed through a person who has passed the examination referred to in Regulation 8 or 19 of the Customs House Agents Licensing Regulations, 2004 duly authorised under Section 146 of the Customs Act, 1962 and therefore, the Appellants violated Regulation 8(2) and 13(h), (iii) That the Appellants have not followed KYC norms for significant percentage of the consignments checked, and have failed to maintain proper records in electronic format while engaging third party courier .....

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3 dt. 13.09.2014 filed by the Appellants was referred which was under investigations. 2.4 An ex-parte Suspension Order cum Show Cause Notice bearing F. No. Air Cus/50/CIC/199/07 dated 25.09.2014 was issued by the Respondent Commissioner suspending the registration granted to the Appellants, pending the completion of inquiry, wherein the Appellants were also called upon to show cause within 30 days of issue of the Suspension Order as to why the license granted under Regulation 10 of the Courier I .....

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. However, vide Order dated 13.10.2014 the Hon'ble High Court was pleased to direct that - 9. However, we direct that the inquiry initiated upon the show cause notice be completed as expeditiously as possible and in any event on or before 15th December, 2014. In the event an adverse order is passed, the same can be challenged in accordance with law. The inquiry shall proceed without being influenced by our prima facie opinion on order of suspension. " 2.6 In reply dated 18.10.2014, the .....

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further steps for conducting any inquiry appears to have been taken for complying with the directions contained in the Order dated 13.10.2014 passed by the Hon'ble Bombay High Court. 2.8 Only a personal hearing was granted on 09.12.2014, wherein at the outset the submissions contained in the preliminary reply were reiterated and further submissions were also made. The Appellants also offered reverification of the entire details of delivery of shipments available with them in electronic mode. .....

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ri (E), Mumbai, on various grounds as set out therein. 2.11 During pendency of the same, the Appellant preferred the instant appeal before this Tribunal against the order passed by the Respondent Commissioner of Customs, as an adjudicating authority. It was contended that the Appeal was erroneously filed before a wrong forum under bonafide mistaken belief that the Appeal was maintainable before the Chief Commissioner. It is further claimed that personal hearings were also availed in which the sa .....

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ted 07.01.2016, and had sought a personal hearing for presenting its case and to urge additional grounds in support of the said representation (erroneously filed as an Appeal before the Chief Commissioner of Customs). During the pendency of the above Appeal and after receipt of the said request dated C7.01.2016, the Principal Commissioner of Customs, acting as Chief Commissioner of Customs, Mumbai Zone-III, vide Order dated 21.01.2016, rejected the representation dated 27.01.2015 filed against t .....

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elied upon- (i) Express Handling Worldwide Vs. CC, CSI Airport, Mumbai, 2014 (299) E.L.T. 359 (Tris), (ii) DHL Express India Pvt. Ltd., Vs. Union of India, 2015 (316) E.L.T. 651 (Kar. HC), (iii) Bombino Express Pvt. Ltd. Vs. Chief Commissioner of cus., Delhi zone, 2015 (315) E.L.T. 496 (Del.), Transit Freight Forwarders vs. Commissioner of (iv) Customs, order dated 10.04.2013 of the Hon'ble Kerala High Court in the Writ Petition (C) No. 10280 of 2013, (v) Commissioner of Central Excise, Mumb .....

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decisions relied upon by the Revenue, the question of maintainability was an issue in respect of any Appeal against an order passed by the Commissioner of Customs as an Adjudicating Authority, under Regulation 10 of Courier (Import & Export) Regulations, 1998, which were notified by the Central Board of Excise & Customs, in exercise of powers conferred under Section 157 of the Customs Act, 1962. In Express Handling Worldwide (supra) the appeal was preferred against the order passed by th .....

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ing any such issue of 'maintainability', as the same was neither raised, nor was under consideration of the Hon'ble Delhi High Court. In the matter of Transit Freight Forwarders (supra), the Hon'ble Kerala High Court was not inclined to exercise their extraordinary writ jurisdiction under Article 226 of the Constitution of India, and found it fit and proper to relegate the Petitioner therein to avail remedy suggested by the Counsel appearing for the Petitioner therein, as provide .....

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an Adjudicating Authority, under Regulation 10 of Courier Import & Export Regulations, 1998, notified by the Central Board of Excise & Customs, in exercise of powers conferred under Section 157 of the Customs Act, 1962. We have perused Section 146 vis-a-vis Section 157 of the Act. Section 146 provides inter alia as under- 146. Licence for customs brokers ……. (2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, .....

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within which such appeal may be filed". Section 146 permits specific provisions for appeals regarding Customs Broker, and therefore, such specific provisions of appeal override the general provisions of the appeal under the Customs Act, 1962. As against this, section 157 confers general power to make regulations, which are required to be made by the Board "consistent with this Act and the rules", No provision under Section 157 provides for any special power and procedure for the .....

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egulation issued under the same provision i.e. Section 157 of the Act, do not contain any provisions for any statutory appeal, however, it is settled law that the orders passed under the said Regulation issued under Section 157 of the Customs Act, 1962 are appealable orders, under the Act as held by the Hon l ble Bombay High Court, in Indoworth (India) Ltd., 2010 (254) E.L.T. 62 (Bom.). We are convinced that the impugned Order is an appealable order in view of the clear language of Section 129A .....

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ier Order dated 06.01.2016 in Application C/COD/95496/15 in this Appeal we had already observed as follows - 6. We have to decide whether an appeal lies before this Tribunal or otherwise. On plain reading of Section 129A of the Customs Act, 1962, we find that as the order has been passed by the Commissioner of Customs as an adjudicating authority, this appeal lies before this Tribunal. The adjudicating authority is also defined under Section 2(1) of the Customs Act, 1962 which means an authority .....

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nted and erroneous. 7. Another preliminary objection was raised by the Revenue that vide Order dated 21.01.2016, representation of the Appellant was rejected by the Chief Commissioner of Customs, and hence, the Tribunal shall not interfere with the impugned Order. We find no merit in this preliminary objection. A representation is not same as appeal. In an order passed on representation, there is no merger with the original order as in case of an order passed in an appeal. The representation is .....

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the Appellants. We also find that the Adjudicating Authority erred in ignoring the offer made by the Appellants of reverification of the entire details of delivery of shipments in electronic mode, and recorded in the impugned order that - "15.4......The submission to produce the records now at this stage cannot be accepted. " Neither any Inquiry Report has been furnished to the Appellant, nor could the Respondent produce any such report before us. Although suspension order was passed .....

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d 124 of Customs Act, 1962, much less after adjudication thereof. Moreover, although Section 138B (2) of the Customs Act, 1962 itself provides for examination of witness before considering any statement as relevant even in any adjudication proceedings, however, no witness was examined before the Respondent in the instant case under the Courier Regulations. The statements were mechanically considered as relevant without conducting any inquiry under the Regulations and without examining the witnes .....

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claration and Processing) Regulations, 2010 are also made applicable as clarified by Board to Authorized Courier registered under the Courier Imports and Exports (Clearance) Regulations, 1998 vide Board Circular No.33/2010-Cus dated 07.09.2010, to which reference is also made in the impugned order itself. On behalf of the appellant, Learned senior Counsel relied on the following instructions contained in the Board Circular in relation to the two Courier regulations issued by the Board- "7. .....

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ocuments may be required to be filed and processed manually due to any break-down in the electronic server or other unforeseen circumstances. Moreover, even at these places the shift to electronic mode will take place gradually with the launch of pilot project, and till such time automation facilities become fully operational at a place, some consignments may need to be processed manually as may be determined by the jurisdictional Commissioners. 7.1 The existing Authorized Couriers who are regis .....

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ourier he can file declarations under both the modes subject to compliance of other requirements of the respective Regulations. 8. These instructions may be brought to the notice -of all concerned by way of issuance of suitable Public Notice/Standing Order." It was thus emphasized that no separate registration was thus required under the 2010 Regulations, and the revocation of the registration under the 1998 Regulation is also revocation under 2010 Regulation, which has been done without fo .....

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leted pursuant to the directions of the Hon'ble High Court and neither any Inquiry Report has been furnished to the Appellant, nor could the Respondent produce any such report before us. 12. In view of the above reasons, we also do not find it necessary to give detailed findings of facts on the issues relating to the alleged break bulk activities concerning M/s. Smashing, and the deliveries of the segregated cargo with invoices put in the packages. Suffice it to say that these findings are e .....

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r "assessment and clearance" of the goods carried by the Authorized Couriers on incoming or outgoing flights or by any other mode of transport on behalf of a consignee or consignor for a commercial consideration. Thus, once the goods were already assessed and cleared from Customs, any arrangement by the Appellant, which is post clearance from Customs for effecting domestic delivery to the door of the Consignee mentioned in the Courier Parcel, did not require any permission under the sa .....

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how they had complied with the KYC verifications in the case of M/s. Smashing and other past clearances. They also informed about the steps taken to even revamp their website. No serious infringement of KYC verification leading to any significant revenue loss was pointed out. even in the Show Cause Notice. We have also seen that the Respondent himself has not considered violation of the KYC norms, as serious enough to merit of suspension in the matter of another courier company M/s. Internationa .....

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nd Exports (Clearance) Regulations, 1998, wherein, all the authorized courier companies were directed to ensure that the cardex number of the F/G Card is mentioned on the documents failing which the documents will be treated as incomplete and it was stipulated that - no clearance will be effected after 15.08.2014 if the above provision is not complied with." A reading of this Office Note shows that even from the date of this Office Note i.e. on 28.07.2014, clearances were permitted to be ma .....

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