2015 (12) TMI 1431 - HC - Customs

Restoration of petitioner s courier license - seizure of goods since the goods were smuggled into India through a false declaration and in violation of Foreign Trade Policy, 2009-14 and the Customs Act, 1962 - unauthorized criminal act of an employee outside the purview of his employment - Held that - Similar courier parcels were smuggled for 85 times for the past several months in the same modus by the Petitioner and that the Petitioner cannot claim to be unaware of the happenings when their employee was manipulating the system and entries made therein for over a period of several months. It is the specific case of the respondents that the Petitioner has not carried out the courier operations with due diligence and not complied with the Regulations under which the Petitioner was issued with the licence and has violated the provisions of the Act Contentions of the Petitioner cannot be a basis to circumvent the appeal remedy available for the petitioner as per Section 129(A) of the Customs Act, 1962, since the said Section provides an efficacious alternative remedy before the Appellate Tribunal against the impugned order. There is also no justifiable grounds to bypass this appeal remedy. Further the issues pointed out by the Petitioner as well as the Respondents are questions of fact and the allegations that the Petitioner had earlier involved around 85 times and illegally cleared such goods against the Regulations, which have to be established by the Parties by producing records and could be examined by the appellate authority. That apart, in the impugned order itself, it has been clearly stated that any person aggrieved by the order can prefer an appeal to the CESTAT under Section 129A of the Customs Act. Since the disputed questions cannot be gone into by this Court, leaving it open to the Petitioner to avail the statutory appeal remedy provided under the Act - Decided against Appellant.

Issues Involved:
1. Legality of the impugned orders passed by the Respondents.
2. Liability of the Petitioner for unauthorized acts of its employee.
3. Compliance with the Courier Imports and Exports (Clearance) Regulations, 1998.
4. Availability and necessity of exhausting alternative appellate remedies.

Detailed Analysis:

1. Legality of the Impugned Orders:
The Petitioner challenged the orders dated 23.7.2014 and 28.4.2014, which revoked its courier license and forfeited its security deposit. The Petitioner argued that the orders were illegal and contrary to the provisions of the Courier Imports and Exports (Clearance) Regulations, 1998, and Section 140 of the Customs Act, 1962. The Petitioner contended that there was no case made out against it, and the revocation of the license and forfeiture of the bank guarantee were not sustainable. The Respondents, however, maintained that the Petitioner had failed to exercise due diligence and had violated several regulations, justifying the impugned orders.

2. Liability of the Petitioner for Unauthorized Acts of its Employee:
The Petitioner argued that it could not be held liable for the unauthorized criminal acts of its employee, Naveen Kumar, who was found manipulating the system to smuggle goods for personal gain. The Petitioner cited Section 140 of the Customs Act, 1962, which states that a company cannot be held responsible for an offense committed without its knowledge. The Respondents countered that the Petitioner had not exercised due diligence and had failed to comply with the regulations, thereby aiding the smuggling activities.

3. Compliance with the Courier Imports and Exports (Clearance) Regulations, 1998:
The Respondents argued that the Petitioner had violated several regulations, including failing to obtain authorization for consignments, not exercising due diligence to ascertain the correctness of information, and not maintaining details about consignees. The Petitioner contended that it had no knowledge of the misdeclaration of contents by the importer and that the impugned order was not justified. The court noted that the Petitioner had not carried out courier operations with due diligence and had violated the provisions of the Act.

4. Availability and Necessity of Exhausting Alternative Appellate Remedies:
The court emphasized that the impugned order was an appealable order under Section 129A of the Customs Act, 1962, and that the Petitioner had not availed the alternative remedy available to it. The court cited previous decisions, including the Supreme Court's ruling in Liberty Oil Mills Pvt. Ltd. v. Collector of Central Excise, which held that ambiguities in fiscal statutes should be resolved in favor of the Revenue. The court concluded that the Petitioner should have approached the Appellate Tribunal (CESTAT) instead of filing a writ petition.

Conclusion:
The court dismissed the writ petition, stating that the disputed questions of fact could not be decided by the court and that the Petitioner should avail the statutory appeal remedy provided under the Act. The court left it open for the Petitioner to file an appeal before the CESTAT if so advised. The court also noted that the impugned order itself mentioned the availability of an appeal to the CESTAT under Section 129A of the Customs Act. Consequently, the connected miscellaneous petition was also closed.

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