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TMI Blog2015 (12) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. - WP. No. 29987 of 2014 MP. No. 3 of 2015 - - - Dated:- 8-12-2015 - R. Mahadevan, J. For the Petitioner : Mr. Satish Parasaran For the Respondent : Mr. Xavier Felix, SCGSC ORDER This Writ Petition is filed to issue a Writ of Certiorarified Mandamus to call for the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, admitted to criminal act on his part of adopting illegitimate means to manipulate the Petitioner's systems and smuggle goods into the country for personal gain. The Petitioner had immediately terminated his employment on internal investigation of the aforesaid event. c. Thereafter, the 2nd Respondent issued a show cause notice dated 14.10.2013, bearing Ref.No.S.MISC.322/2013-Courier Cell, requiring the Petitioner to show cause as to why the registration of the Petitioner, as an 'authorised courier' (registration No.25/2001 valid till August 1, 2017) granted by the Commissioner of Customs (Air Port) under Regulation 10 of the Courier Regulations should not be revoked and further the bank guarantee of ₹ 10 lakhs furnished by the Petitioner should not be forfeited. Upon receipt of the above said show cause notice, the Petitioner sent a detailed submission dated 9.1.2014, refuting the allegations raised by the 2nd Respondent, pointing out that it was not liable for an unauthorized criminal act of an employee outside the purview of his employment. However, the 2nd Respondent issued the impugned Order-in-Original No.289/2014-AIR dated 28.4.2014, revoking the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receiver was shown as Mr.Gauri Nandanam, 47 DSR Vishnu Plaza,JN Road, Thiruvallur, Chennai 602001. As per the said invoice cum packing list, the cartons were declared to contain 50 numbers of booklets, 10 numbers of cables and accessories and 50 numbers of printing sheets, with a total value of 840 SGD (INR36800). No specific import documents towards import of the said goods (bills of entry) were filed in respect of the said two airway bills. On detailed examination, the said two cartons were found to contain 10 numbers of sony high definition digital video cameras without battery and accessories, 204 numbers of Titan branded watches of various models and 10.475 kgs of 22 carat gold jewellery concealed in one martin roland brand audio receiver by removing its inside components. The total value of the impugned goods were arrived at ₹ 3,32,51,885/-. As the impugned goods were out rightly smuggled into India without any declaration and by concealment, the officers seized the same under a mahazar dated 18.01.2013. c. Verification at the consignee address i.e. 47, DSR Vishnu Plaza, JN Road, Tiruvallur, Chennai 602001 for GauriNandanam, revealed that no such person was available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be dismissed. 4. The learned counsel for the Petitioner contended that the impugned order of the Respondents 1 and 2 is illegal and contrary to the provisions of the Courier Imports and Exports (Clearance) Regulations, 1998 and the provisions of Section 140 of the Customs Act, 1962 and that when there is no case made out against the Petitioner, revocation of licence and forfeiture of bank guarantee are not sustainable and that the 1st Respondent has repeated the order of the 2nd Respondent verbatim, without considering the issues and the representation of the Petitioner on merits, which shows non application of mind and that the Petitioner cannot be held liable for an unauthorized act of an employee, without the knowledge of the Petitioner and that as per Section 140, in case of offences under the Customs Act, a Company cannot be held responsible if the offence was committed without the knowledge of the Company and that in the absence of any mala fide intention on the part of the Petitioner and in the absence of any knowledge of misdeclaration of contents by the importer, the licence of the Petitioner ought not to be revoked and that as per Section 147(2) of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the knowledge of the Petitioner and they had no knowledge of misdeclaration of contents by the Importer. 8. On the contrary, it is contended by the Respondents that it was detected 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 and that there is an alternative and efficacious appeal remedy available to the Petitioner. 9. The following decisions have been relied on by the learned counsel for the Petitioner:- 1. 2014 302 ELT 161 Del (Ashiana Cargo Services Vs. Commissioner of Customs) 2. 2011 186 ECR 0314 AP (The Commissioner of Customs and Central Excise Vs. H.B.Cargo Services) 10. The following decisions have been relied on the side of the Respondents:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced any material before this Court to justify its action in bypassing the appellate remedy available under the Act. 20. In the light of the above findings, this Court is not inclined to go into the merits of the contentions raised by the petitioner and the writ petition is dismissed, as not maintainable. However, it is open to the petitioner to file an appeal before the CESTAT, if so advised. No costs. 12. In the case on hand, the 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 cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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