2016 (7) TMI 1120 - AT - Customs

Levy of penalty on courier company - charge of abetment - mis-declaration of goods - Original Authority ordered the confiscation of goods; imposed penalty of ₹ 5 lakhs on the consignee of the parcel; imposed a penalty of ₹ 1 lakh and ₹ 25,000/- on the present appellants; dropped proceedings against two customs officers. - Held that - the Original Authority recorded that the courier bill of entry is having endorsement of the officer for having examined the consignments. Apparently this has been admitted by the Original Authority irrespective of the fact that the second appellant in his statement given before the officers alleged to have admitted that no examination was done of the consignment. The Original Authority held that in the absence of any positive evidence the charge of abetment cannot be proved against the two customs officers who were also issued with notice for penalty under Section 112. He further held that there is no charge of malafide on the part of officers and also no charge of any pecuniary benefits accruing to the said officers. All these go to show that the officers have discharged their duty and the goods have been cleared after due examination. It is not clear then how the mis-declared item could be detected at the TNT hub of the courier company much away from the custom area. Different standards have been followed by the Original Authority in examining the charge of abetment - one for the customs officers the other for courier company and its employee. On the one hand he held that the officers discharged their duty though it is clear that if the examination has been done before clearance as recorded by the Original Authority, the mis-declaration could not have escaped detection. However, for such mis-declaration the courier company has been found liable for penalty. It is apparent that while appreciating the factual evidence, the Original Authority did not follow consistency and arrived at different conclusions on same set of facts. I find that while the statements given by the officers have been accepted as truth, the statement given by the employee of courier company has been discounted selectively, at least w.r.t. the fact of examination of cargo before clearance. Charge of abetment cannot be sustained against the appellant in the facts and circumstances of the case. - No penalty - decided in favor of appellant.

Summary

Issues:
1. Imposition of penalties under Section 112(a) of Customs Act, 1962 on a courier company and its employee for alleged violations of customs provisions in the import of goods.

Analysis:
The appeals were against penalties imposed under Section 112(a) of the Customs Act, 1962, on a courier company and its employee for their alleged involvement in improper importation of goods. The main issue revolved around whether the appellants abetted the violations of customs provisions as alleged by the Original Authority. The appellants were accused of violating Regulation 12 of the Courier Imports and Exports Regulations, 2010, specifically related to obligations of authorized couriers. The Original Authority held that the courier company and its representative abetted improper importation through acts of commission and omission.

2. Compliance with Customs Regulations and Abetment Allegations:
The appellants argued that they were an established courier company with a good track record of compliance with customs regulations. They contended that they acted in accordance with the documents accompanying the parcels, as per normal practice. The main appellant's arrangement with a Hong Kong courier company was cited to explain the handling of the parcel in question. The appellants denied prior knowledge of mis-declaration and challenged the abetment allegations, emphasizing the lack of evidence of any benefit from such acts.

3. Interpretation of Regulations and Abetment Charges:
The Tribunal analyzed the provisions of Regulation 12 and Section 112(a) in detail. It noted that for low-value dutiable consignments, prior authorization requirements were relaxed, and obligations related to consignee verification were primarily post-clearance. The Tribunal found that the charge of abetment against the appellants was not substantiated, as there was no evidence of intentional aiding of improper importation. The Tribunal highlighted inconsistencies in the Original Authority's treatment of customs officers and the courier company regarding abetment allegations.

4. Precedents and Legal Interpretation:
The Tribunal referred to legal precedents to support its decision. Previous cases emphasized the importance of proving intentional aiding for abetment charges and the lack of penalty imposition in cases of no prior knowledge of mis-declaration. The Tribunal distinguished the present case from a previous decision involving discrepancies in weight declaration, emphasizing the unique circumstances and regulations applicable in each case.

5. Decision and Conclusion:
After thorough analysis, the Tribunal concluded that the charge of abetment could not be sustained against the appellants based on the facts and circumstances of the case. The penalties imposed under Section 112(a) were set aside, and the appeals were allowed. The Tribunal's decision highlighted the importance of evidence and intention in establishing abetment charges and emphasized the need for consistent application of legal principles in such cases.