2017 (1) TMI 404 - AT - Customs

Revocation of Courier licence - imposition of further punishment on courier company - Held that - The appellant has denied any knowledge of the alleged conspiracy and offence committed by certain persons, which included some employees of the appellant. This lack of knowledge is not in dispute. The appellant courier ought to have been more cautious and vigilant. There was systemic failure / lax administration of Courier to contain fraud, there was involvement / complicity of its employee of foreign counter part, and certain employees committed gross illegalities. However, we find that it is not the case of the department that the appellant courier company itself was actively involved in any violation by taking help of its employees with intent to evade any duty or prohibition or for any personal gains. We find that there is no dispute on the fact that the named employees of the appellant courier have committed gross violations on their own accord to satisfy their own greed without knowledge of the appellant courier. We do not find any reasonable justification to subject the appellant to any further punishment by extending benefit of doubt - The Courier Registration of the Appellant stands restored with security deposit forthwith with consequential relief - appeal allowed - decided partly in favor of appellant.

Issues Involved:
1. Request for adjournment by the Revenue.
2. Revocation of courier license of the appellant.
3. Maintainability of the appeal before the Tribunal.
4. Vicarious liability of the appellant for the acts of its employees.
5. Proportionality of the punishment imposed.

Detailed Analysis:

1. Request for Adjournment by the Revenue:
The Revenue sought a four-week adjournment to obtain information from the Commissioner and prepare arguments. Despite the early hearing application being allowed on 27.07.2016, the request was denied as the matter was urgent, involving the revocation of a courier license, which affected the livelihood of the appellant.

2. Revocation of Courier License of the Appellant:
The primary issue was the revocation of the appellant's courier license due to the misconduct of two employees involved in the illegal clearance of silver jewelry disguised as courier packages. The show-cause notice was issued under Section 124 of the Customs Act, 1962, and cited violations under Section 114AA, Section 117, and Regulations 10 and 14 of the Courier Imports and Exports (Clearance) Regulations, 1998.

3. Maintainability of the Appeal Before the Tribunal:
The Tribunal addressed the issue of maintainability, referencing its decision in Bombino Express Pvt Ltd vs. CC, which established that appeals against orders passed by the Commissioner of Customs as an adjudicating authority under Regulation 10 of the Courier Imports and Exports (Clearance) Regulations, 1998, are maintainable. The Tribunal concluded that the appeal was indeed maintainable based on the clear language of Section 129A of the Customs Act, 1962, and the definition of "adjudicating authority" under Section 2(1).

4. Vicarious Liability of the Appellant for the Acts of its Employees:
The appellant argued that the misconduct was solely due to the personal greed of the employees and that the company had no involvement. The Tribunal noted that the appellant had taken disciplinary action against the guilty employees and had a previously unblemished track record. The Tribunal found that the appellant was not complicit in the illegal acts and that the employees acted outside the scope of their employment. The Tribunal referenced various judgments, including the Supreme Court's decision in Sham Sunder and Others v. State of Haryana, which emphasized that there is no vicarious liability in criminal law unless explicitly stated by statute.

5. Proportionality of the Punishment Imposed:
The Tribunal considered the proportionality of the punishment, noting that the courier license had been revoked for over two years, which was deemed sufficient given the circumstances. The Tribunal referenced the Hon'ble Delhi High Court's decision in Falcon Air Cargo and Travels (P) Ltd. Vs Union of India, which highlighted the importance of proportionality in punitive actions under fiscal statutes.

Conclusion:
The Tribunal allowed the appeal, setting aside the order that revoked the courier registration and forfeited the security deposit. The courier registration of the appellant was restored with consequential relief, recognizing that the punishment already suffered was sufficient. The appeal was partly allowed with consequential relief.

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