2021 (11) TMI 618 - AT - Customs

Levy of penalty u/s 112A on the courier service - Seizure of demonetised Indian currency - wrong declaration in relation to an Airway Bill due to which demonetised Indian Currency notes got couriered to India under the guise of being called as documents - section 82 of the Customs Act - HELD THAT - From the facts of the case, it is apparent that the Bank had no role till the said courier was delivered to it by the FedEx courier. It was for the Department to show that the Bank had a knowledge about the declaration given on airway bill that the annexed parcel has demonetized Indian currency goods but has been declared as documents. But apparently there is no such evidence. The initial burden was on the department. Hence finding in sub paragraph 2 of paragraph 5 of the order under challenge is apparently a wrong finding. The same para rather has discussed the precise advise as was given by the appellant to the sender of the impugned courier asking him to send the demonetized currency notes in person during his visit to India or through authorised representative, he being stationed abroad - There is nothing on record to show or indicate that it was appellant who has wilfully or intentionally made the declaration. Infact admittedly, the declaration is not made by the appellant, the question of it to be their wilful and intentional act does not at all arise - This Tribunal in the case of UPS JETAIR EXPRESS PVT LTD VERSUS COMMISSIONER OF CUSTOMS AIRPORT, MUMBAI 2018 (6) TMI 345 - CESTAT MUMBAI has held that mere handling in the course of professional engagement does not necessarily imply prior knowledge of liability of the goods to confiscation. That requires an independent and specific finding which is conspicuously absent in the impugned order. The findings given in the Order under challenge alleging the appellant to mis-declare are apparently wrong on the face of facts as well as documents - Appeal allowed.

Summary

Issues involved:
Alleged wrong declaration on an Airway Bill leading to the courier of demonetised Indian currency, imposition of penalty under Customs Act, invocation of section 82 of the Customs Act, applicability of case laws, confirmation of penalty by Commissioner (Appeals), reasonableness of the order passed.

Alleged Wrong Declaration and Imposition of Penalty:
The appeal was filed challenging the Order-in-Appeal related to the detention of a courier containing demonetised Indian currency. The appellant denied making any declaration regarding the demonetised currency, attributing it to the sender who opted to send the currency notes through courier despite advice to deposit them in a bank. The appellant argued against the imposition of penalty under section 112 of the Customs Act, emphasizing the absence of any alleged declaration by them. The appellant also highlighted the relevance of section 82 of the Customs Act, which, although no longer in effect, was applicable at the relevant time. The appeal sought to set aside the penalty based on these grounds.

Invocation of Section 82 of the Customs Act:
The Tribunal analyzed the application of section 82 of the Customs Act, which deems any label or declaration accompanying goods in post parcels as an entry for import or export. Referring to relevant case law, the Tribunal clarified the distinction between declarations made for goods imported by land, sea, or air, and those made for post parcels. It was noted that section 82 does not require the importer to make a declaration, and any wrong declaration on a post parcel does not automatically attribute liability to the importer. The Tribunal examined the specific circumstances of the case to determine the responsibility for the alleged wrong declaration on the courier containing demonetised Indian currency.

Applicability of Case Laws and Confirmation of Penalty:
The appellant relied on various case laws, including Skycom Express, UPS Jetair Express, Aramex India, and Uni-Sankyo Ltd., to support their argument against the confirmation of the penalty. These cases emphasized the importance of specific findings and wilful intent in imposing penalties under the Customs Act. The Tribunal reviewed the findings of the Commissioner (Appeals) and the reasonableness of the order passed, considering the arguments presented by both parties. The case laws were instrumental in guiding the Tribunal's decision regarding the confirmation of the penalty and the overall appeal.

Reasonableness of the Order and Final Decision:
After considering the arguments from both sides and examining the factual matrix of the case, the Tribunal found that the appellant was not responsible for the alleged wrong declaration on the courier containing demonetised Indian currency. It was established that the appellant did not wilfully or intentionally make the declaration, and the responsibility lay with the sender of the courier. The Tribunal highlighted the lack of evidence implicating the appellant in the declaration and set aside the order confirming the penalty. The appeal was allowed, emphasizing the incorrect findings in the order under challenge and the absence of liability on the part of the appellant.

This comprehensive analysis of the legal judgment addresses the issues of alleged wrong declaration, penalty imposition, invocation of section 82 of the Customs Act, application of case laws, confirmation of penalty, reasonableness of the order, and the final decision reached by the Tribunal.