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TMI Blog2017 (1) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. - C/86300/16 - A/95155/16/CB - Dated:- 29-12-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Atul Nanda Sr.Advocate with Shri Mayank Jain, Advocate for appellant Shri M.K. Sarangi, Jt. Commr (AR) for respondent ORDER Per M. V. Ravindran When this matter was called out learned D.R. submits that he is seeking time i.e. 4 weeks adjournment for the Revenue to argue the matter as some information needs to be obtained from the Commissioner. It is also his submission that they had insufficient time for preparing the arguments. This is despite application for early hearing of appeal having been allowed on 27.07.2016. 2. We find from the records that this matter was listed for disposal on 04.08.2016 on which date the Hon'ble Member Shri Ramesh Nair, Member (Judicial) recused from the matter and the matter got listed before this Bench on 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lver jewellery into India. 3.3 Learned Counsel would read paragraph 22.2 and 22.3 regarding the role played by these employees namely Shri Hitesh Narayandas Fofandi and Shri Ravi Sahebrao Kadam and submit that both the employees have never ever stated that appellant herein have played any role in respect of their misdemeanor. He would read paragraph 22.5 of the show-cause notice and submit that the employees had verified the key documents in the form of KYC documents before giving the said package and also the M/s. Aramex, Hong Kong office had collected the shipment as per declaration made by the exporter and transmitted to India. He would submit that the entire case of the Revenue seems that the appellant herein had not exercised due control over their employees. 3.4 He would submit that the show-cause notice was issued to them for imposing penalty under Section 114AA and Section 117 of the Customs Act, 1962. He would read the allegation in the notice for revocation of Courier Registration under Regulation 10 and 14 of the Courier Imports and Exports (Clearance) Regulations, 1998 as amended (page 134, para 12). 3.5 After drawing our attention to the notice issued (annexed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould submit that they have stated the following decisions before the adjudicating authority for the proposition that a master is vicariously liable for the acts of his servant, unless the act is done in the course of employment, the servant's act does not make the employer liable. It is his further submission that the amount of security deposit has been forfeited which is quasi criminal and vicarious liability in criminal proceeding do not arise. He places reliance on following decisions:- (a) V.B. Bhatia Co. 7 2006 (200) ELT 150 (Tri. - Mum) (b) Bharat Overseas Communicators - 2007 (209) ELT 142 (Tri. - Mum) (c) Skypack Service Specialists Ltd. - 2011 (149) ELT 1464 (Tri. - Mum) (d) Sitaram Motilal Kalal - AIR 1966 SC 1697 3.9 He would draw our attention to the judgement of the Hon'ble Supreme Court in the case of Sham Sunder and Others v. State of Haryana - (1989) 4 SC 630. It is his submission that in the criminal liability under Criminal Procedures Code, penal provision must be strictly construed in the first, secondly there is no vicarious liability in criminal law unless the statute takes that also within its fold. It is his further submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Silver jewellery valued ₹ 18,45,802/ was seized from HUB office of the Courier. During investigation, it was found that 19 similar consignments have been cleared of 1038 Kg valued ₹ 4,34,25,057/-. During investigation it was found that two employee Sh. Hitesh Fofandi Dagdu alias Ravi Kadam of Courier in connivance with Sh Hemant Badola of M/s Manisha Ente, and Sh Rahul Khamkar of M/s Sarthak Shpg Services, were main agent for such clearance along with involvement of Hong Kong staff of the Courier. Therefore action has been taken against the appellant courier company that too by following the principles of natural justice and only after SCN by the Commissioner, the Courier licence has been revoked under Reg.14 while imposing penalty under the Customs Act,1962, for violation of Regulations. 4.2 He raised preliminary objection on the jurisdiction of this Tribunal to hear the appeal. He submitted that right to appeal is not natural right or inherent right unless such right is given specifically under Statute. According to him neither the Customs Act, 1962, nor the Courier Regulations provide for any appellate remedy. He relied upon the following judgments to buttress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erify antecedent, correctness of IEC or identity of importer which was found to be fictitious. The employee forged dummy B/E, destroyed same after removal of goods which were not declared before Customs. The Invoice for consignment was not found in System, but submitted later for verification. Work was done by the employees involved in the case during course of employment, as goods moved to their HUB office from where goods are delivered. It is not case that employee did something outside employment. Based on employer request Customs pass has given to employee of Courier, hence it is natural that they are vicariously liable for wrong doing during such employment. There is lack of supervision, and clearance of 20 consignments was in similar fashion. He submitted that the judgments relied upon on behalf of the appellant were not relevant and applicable in the facts of the case. He relied upon the following decisions to submit that no reliefs be granted to the appellant: (a) CC Vs K.M Ganatara, 2016-TIOL-12-SC-CUS (b) Chandra CFS ,2015-236 ELT 122-Mad. (c) Sri Kamakshi Agency Vs CC, 2001-129 ELT 29-Mad. (d) Bipin M Pujara Vs CC,1999-107-ELT 298-Cal (e) CC Vs Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Handling Worldwide (supra) the -appeal was preferred against the order passed by the Chief Commissioner of Customs, Mumbai on a representation filed by the Appellant, and not against order passed under Regulation 10, by the Commissioner of Customs as an Adjudicating Authority. In DHL Express India Pvt. Ltd. (supra), the Hon'ble Karnataka High Court refused to exercise its extraordinary and discretionary writ jurisdiction against suspension of courier licence. In Bombino Express Pvt. Ltd. (supra) , the Hon'ble Delhi High Court dismissed their writ petition, without deciding any such issue of 'maintainability', as the same was neither raised, nor was under consideration of the Hon'ble Delhi High Court. In the matter of Transit Freight Forwarders (supra) , the Hon'ble Kerala High Court was not inclined to exercise their extraordinary writ jurisdiction under Article 226 of the Constitution of India, and found it fit and proper to relegate the Petitioner therein to avail remedy suggested by the Counsel appearing for the Petitioner therein, as provided under Regulation 14(2). Therefore, even the said order dated 10.04.2013 is not an authority on the issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 157 of the Act, do not contain any provisions for any statutory appeal, however, it is settled law that the orders passed under the said Regulation issued under Section 157 of the Customs Act, 1962 are appealable orders, under the Act as held by the Hon'ble Bombay High Court, in Indoworth (India) Ltd., 2010 (254) E.L.T. 62 (Bom.). We are convinced that the impugned Order is an appealable order in view of the clear language of Section 129A read with the definition of the words Adjudicating Authority as contained under Section 2(1), which permits any person to file appeal before the Tribunal, if aggrieved by any decision or order passed by the Commissioner of Customs as an Adjudicating Authority. Since the impugned Order is passed by Commissioner of Customs as an adjudicating authority, under the provisions of Customs Act, 1962 and Regulations framed thereunder, the same is appealable order. Moreover, vide our earlier Order dated 06.01.2016 in Application C/COD/95496/15 in this Appeal we had already observed as follows - 6. We have to decide whether an appeal lies before this Tribunal or otherwise. On plain reading of Section 129A of the Customs Act, 1962, we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability in light of these statutory provisions and definitions, which were considered in the case of Bombino (supra), has been produced. Moreover, the vide the impugned Adjudication Order the Commissioner as an Adjudicating Authority has imposed penalty under Section 158(2)(ii) of the Customs Act, 1962. None of the judgments relied upon by the Respondent hold that penalty imposed by the adjudicating authority under a provision of Customs Act, 1962 cannot be challenged in Appeal before this Tribunal. Therefore, we do not find any merit in the request for referring the matter to a larger bench. We therefore have no hesitation in holding that the appeal is maintainable as per the ratio laid down in Bombino (supra). 7.1 We have carefully considered the factual allegations. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- has been imposed on them under Section 158(2)(ii) of the Act for violation of provisions of Courier Regulations. 7.6. The Courier License was suspended on 06.06.2014 pending inquiry for revocation. Thereafter the same has been revoked vide the impugned Order without conducting any further inquiry under Courier Regulations, by relying upon the show cause notice issued under Section 28 read with Section 124 of the Act. The Appellant and its employees (other than the guilty employees), who were themselves not involved in any fraud, have already faced much hardship and have been deprived of their livelihood for a considerably long period since June, 2014. The punishment already suffered by keeping them out of business and imposition of penalty of ₹ 50,000/- under Section 158(2)(ii) should suffice. In Falcon Air Cargo and Travels (P) Ltd. Vs Union of India, 2002 (140) E.L.T. 8 (Del.), the Hon'ble Delhi High Court was pleased to observe that- 13...Though we have not dealt with the question of proportionality, it is to be noted that the authorities while dealing with the consequences of any action which may give rise to action for suspension, revocation or non-ren ..... X X X X Extracts X X X X X X X X Extracts X X X X
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