2010 (12) TMI 397 - AT - Customs

Penalty u/s 112(a) - Regulation 5(3) of the Courier Imports and Exports (Clearance) Regulations, 1998 - the consignee or a Customs House Agent on behalf of the consignee, may file a Bill of Entry in the form prescribed in the Bill of Entry (Forms) Regulations, 1976 for clearance of any of the imported goods - the courier should advise his client to comply with the provisions of the Customs Act and Rules and Regulations made thereunder and, in case of non-compliance thereof, should bring the matter to the notice of the Assistant/Deputy Commissioner of Customs - the original authority chose to penalise the courier on the ground that the courier did not advise the consignee/importer to furnish IE Code. On the facts of this case, it was the CHA who could have advised the importer. - Decided in the favour of the assessee

Summary

Issues:
Imposition of penalty on a courier under Section 112(a) of the Customs Act.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Mumbai concerns the imposition of a penalty on a courier under Section 112(a) of the Customs Act. The original authority had imposed the penalty, which was subsequently vacated by the Commissioner (Appeals), leading to the Revenue's appeal. The crux of the matter revolves around the courier's alleged failure to fulfill obligations under Regulation 13 of the Courier Imports and Exports (Clearance) Regulations, 1998, and the filing of a Bill of Entry without an Import Export Code (IEC).

Upon examination of the records and submissions, it was revealed that the Bill of Entry was actually filed by the importer's Customs House Agent (CHA) and not by the courier. The proviso to sub-regulation (3) of Regulation 5 allowed for the CHA, with the concurrence of the courier, to file the Bill of Entry on behalf of the consignee. The Tribunal noted that the CHA filed the Bill of Entry with the concurrence of the authorized courier, absolving the courier of direct liability for any lapses in compliance.

The Tribunal emphasized that the obligations of the authorized courier, as outlined in Regulation 13, pertain to cases where the courier files the Bill of Entry on behalf of the consignee/importer. In this instance, since the CHA filed the Bill of Entry on behalf of the importer, the relevant obligations shift to the CHA under the Customs House Agents Licensing Regulations (CHALR), 2004. Notably, the authorities failed to address any omissions or commissions by the CHA under the CHALR, 2004, and instead penalized the courier for not advising the consignee to provide the IE Code, a duty that fell within the CHA's purview.

Consequently, the Tribunal upheld the decision of the appellate Commissioner, finding no fault with regard to the respondent, the courier. The appeal by the Revenue was dismissed, affirming the appellate Commissioner's ruling in favor of the respondent.