9911796707
TMI Blog2015 (4) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... ational transportation of goods i.e., collecting and delivering of goods to which it had been appointed but had appointed agents namely, M/s. ADP Express Private Ltd. to act as their agent for their Hong Kong shipments and M/s. Universal Courier Pvt. Ltd. for Singapore shipments. On account of petitioner not obtaining prior permission from the Commissioner of Customs in terms of Regulation 13(j) of Courier Regulations, a show cause notice dated 8-5-2014 came to be issued to petitioner as to why Courier Registration issued to petitioner should not be revoked and security furnished by petitioner should not be forfeited in terms of provisions of Regulation 14(1) of Courier Regulations. 3. On reply being submitted twice and adverting the contentions raised by authorized representative of petitioner, Commissioner of Customs has dealt with ail the three contentions raised by authorized represenrntive of petitioner and a finding came to be recorded by order dated 31-7-2014, Anncxure - B, which reads as under : "12.2 Adverting to the stand taken in the reply dated 28-5-2014, at the outset, it needs to be noted that the agreement with ADP has been entered on 3-1-2012. Thus, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d relates to filing of documents with Customs and handling of goods while in customs control. Obviously, these Regulations do not specify all the functions which an Authorized Courier is required to carry out. On the other hand, the definition of 'Authorized Courier' as contained in Regulation 3(a) and which has been relied upon in the show cause notice, clearly indicates that the Authorized Courier has to, inter alia, carry out the door to door delivery of courier consignments. In other words, a person who is not doing door to door delivery cannot be termed as an Authorized Courier. Thus, Esquire Express cannot be termed as the Authorized Courier since they do not undertake door to door delivery. Further, since as per them, the Commissioner has no powers to permit outsourcing of door to door delivery, the position also cannot also be cured. In such a case net result would be that the Esquire Express cannot be allowed to operate as an Authorized Courier, an eventuality which they are so stridently attempting to avoid. Suffice it to say, it is a self defeating argument. 13. As brought out herein above, an Authorized Courier is required to undertake international transportatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found in Regulation 14(1) is to be read conjunctively. It is also contended that Regulation 13(j) only stipulate that written permission of Commissioner of Customs should be obtained before sub-contracting or outsourcing activity is done by Authorised Courier and non-obtaining of permission is only procedural irregularity and said Act is not prohibited under the Courier Regulations. It is also contended for such procedural infraction Commissioner of Customs was not justified in forfeiting the amount and such forfeiture does not appeal to the doctrine of proportionality of punishment. It is also contended that forfeiture of security is an act of deterrent and has curtailed the expansion plans of petitioner's business in other areas. By way of alternate submission he also contends that on account of said forfeiture order passed by the Commissioner of Customs on 31-7-2014, Annexure-B, petitioner is being denied the registration by other jurisdictional Commissionerate across the country and the applications filed by petitioner for grant of Authorised Courier registration is kept pending without any decision taken on said applications and thereby it has resulted in preventing the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of goods i.e., collecting and delivering of goods as per Courier Regulations, it had outsourced its job by appointing agents namely M/s.ADP Express Private Ltd. to act as an agent to their Hong Kong shipments and M/s. Universal Courier Pvt. Ltd. for Singapore shipments. Hence, the Joint Commissioner of Customs was of the view that in terms of Regulation 13(j) of Courier Regulations the Authorized Courier was not entitled to enter into sub-contract or outsource its functions permitted or required to carry out by it in terms of Courier Regulations, without obtaining written permission of the Commissioner of Customs and it was also found that petitioner had not obtained such prior permission before entering into such agreements with these two companies referred to supra. Accordingly, a show cause notice came to be issued on 8-5-2014 as to why Courier Registration issued to petitioner should not be cancelled and the amount furnished by petitioner way of security by executing a bond should not be forfeited. 10. Reply submitted to show cause notice on 28-5-2014 by petitioner indicated that non obtaining of such permission is only procedural infraction and as such, it was conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under regulation 11; (b) failure of the Authorised Courier to comply with any of the provisions of these regulations; (c) a misconduct on the part of the Authorised Courier : Provided that no such revocation shall be made unless a notice has been issued to the Authorised Courier informing him the grounds on which it is proposed to revoke the registration and he is given an opportunity of making a representation in writing and a further opportunity of being heard in the matter, if so desired : Provided further that, in case the Commissioner of Customs considers that any of such grounds against an Authorised Courier shall not be established prima facie without an inquiry in the matter, he may conduct the inquiry to determine the ground and in the meanwhile pending the completion of such inquiry, may suspend the registration of the Authorised Courier. If no ground is established against the Authorised Courier, the registration so suspended shall be restored. (2) Any Authorized Courier xxxxxxx may be possible." 12. A plain reading of above said Regulation would clearly indicate that Principal Commissioner of Customs and Commissioner of Customs, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity invoking forfeiture clause and the amount to Department. Hence, this Court is of the considered view that for myriad reasons stated hereinabove it cannot be held that orders passed by the Authorities is contrary to Courier Regulations or forfeiture being disproportionate to prove violation of Courier Regulation. 14. Insofar as second prayer is concerned, this Court is of the considered view that it cannot be entertained for reasons more than one: Firstly there is no cause of action for the petitioner to urge the said prayer before this Court, inasmuch as, application said to have been made by petitioner is before the Commissionerate of Jaipur and as such, it is for the petitioner to pursue its remedy before the jurisdictional High Court. Secondly, application filed by petitioner has not been rejected and language employed in the communication dated 27-3-2014, which is part of Annexure-S would indicate that said application is kept pending on the ground of non-receipt of any report from the Commissioner of Customs, Bengaluru. If it is so, it is open to petitioner to pursue its grievance before jurisdictional High Court. For these reasons, this court is not inclined to en ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
