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TMI Blog2019 (5) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... is a sole proprietorship concern of Sh. Surender Kumar Sharma. His registration as an "Authorized Courier" was revoked on the ground that he did not qualify to be an "Authorized Courier" within the meaning of Regulation 3(1)(b) of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010 (hereafter "the 2010 Regulations") and Regulation 3(a) of the Courier Imports and Exports (Clearance) Regulations, 1998 (hereafter "the 1998 Regulations"). 3. The principal controversy involved in the present petition is whether the petitioner falls within the definition of an Authorized Courier under the 1998 Regulations and the 2010 Regulations and whether the petitioner has complied with his obligations under those Regulations. The principal allegation against the petitioner is that he is not performing functions of a courier but is merely acting as a Custom Clearing Agent. The petitioner disputes the same and states that all noncore functions relating to pick-up or local delivery of export/import courier packages/ shipments and housekeeping activities are not necessarily required to be performed by an Authorized Courier and the same can be outsourced. He claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cum suspension order dated 18.02.2016 calling upon the petitioner to show cause as to why his courier license not be cancelled. By the same order, the petitioner's courier license was also suspended. The petitioner states that the said Show cause notice cum suspension order was received on 22.02.2016, as it was dispatched on 20.02.2016. 11. On receipt of the aforesaid Show cause notice, the petitioner filed a representation dated 02.03.2016 before respondent no.2. The petitioner was afforded a personal hearing on 14.03.2016. Thereafter, the petitioner filed a writ petition being W.P.(C) 3485/2016 captioned "M/s. Future Express and Anr. V. Union of India and Ors." challenging the Show cause notice cum suspension order. 12. While proceedings were pending before this Court, the Inquiry Officer appointed by the respondents concluded the inquiry and passed an order dated 17.05.2016 concluding that the petitioner does not fulfill the attributes on an Authorized Courier. The said report was communicated to the petitioner on 14.06.2016. 13. Respondent no.2 also concluded the proceedings initiated pursuant to the Show cause notice and passed the order dated 27.01.2017 revoking the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that the same was not necessary as the respondents had by a subsequent Circular (Circular No. 59 of 2016 - Customs dated 02.12.2016), recognized that no permission was required to outsource non-core activities. He contended that in terms of the said notification, the petitioner was only required to submit prior intimation for outsourcing the non-core functions of pick-up, local delivery and housekeeping activities. 18. He submitted that in view of the aforesaid notification, the order rejecting the petitioner's license and the impugned order, could not be sustained. Reasons and Discussion 19. The Central Board of Excise and Custom (CBEC) has framed the 1998 Regulations for assessment and clearance of goods by Authorized Couriers. Subsequently, CBEC also framed the 2010 Regulations for enabling electronic filing and processing of customs declaration with regard to import and export consignments carried by courier companies. Consequential changes were also made in the 1998 Regulations, which regulates the procedure for clearance of courier consignments in a manual mode. 20. As is apparent from the above, the principal question to be addressed is whether the petitioner is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k related to the clearance of import goods or of export goods; (d) not withhold information communicated to him by an officer of customs, relating to assessment and clearance of import goods as well as inspection, examination and Clearance of export goods, from a client who is entitled to such information; (e) not withhold any information relating to assessment and clearance of imported goods or of export goods, from the Assessing Officer; (f) not attempt to influence the conduct of any officer of Customs in any mater pending before such officer of his subordinates by the use of threat, false accusation, duress of offer of any special inducement or promise of advantage or by this bestowing of any gift or favour or other thing or value; (g) maintain records and accounts in such form and manner as may be directed from time to time by an Assistant Commissioner of Customs or Deputy Commissioner or Customs and submit them for inspection to the Assistant Commissioner of Customs or an officer authorised by him, wherever required. (h) file declarations, for clearance of imported or export goods, through a person who has passed the examination referred to in regulation 8 or regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upto 31st December, 2011 shall be allowed to the Authorised Courier for fulfillment of the obligation in so far as it relates to examination referred to in regulation 8 of the Customs House Agents Licensing Regulations, 2004. (iii) advise his consignor or consignee to comply with the provisions of the Act, rules and regulations made thereunder and in case of non-compliance thereof, he shall bring the matter to the notice of the Assistant Commissioner of Customs or Deputy Commissioner of Customs; (iv) verify the antecedent, correctness of Importer Exporter Code (IEC) Number, identity of his client and the functioning of his client in the declared address by using reliable, independent, authentic documents, data or information; (v) exercise due diligence to ascertain the correctness and completeness of any information which he submits to the proper officer with reference to any work related to the clearance of imported goods or of export goods; (vi) not withhold information communicated to him by an officer of customs, relating to assessment and clearance of imported goods as well as inspection, examination and Clearance of export goods, from a consignor or consignee who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Express with compete documentation of hand over. ¯ 5. Pincode wise segregation of deliveries at warehouse managed by Budget Courier Pvt. Ltd. ¯ 6. Final Delivery to Receivers location in NCT- Managed by Budget Courier Pvt. Ltd. ¯ 1. Final Delivery to receiver location of Rest of India - Managed by Budget Courier Pvt. Ltd." 26. In addition to the above, the petitioner had also set out its obligations and that of Budget under the MoU, in his submissions. The same is set out in the order dated 27.01.2017 and is reproduced below:- "Responsibility (Operational & Financial) of Each Company as described below: Joint Responsibility: Both M/s Budget Couriers Pvt. Ltd and M/s Future Express are jointly responsible for KYC & various documentation as required by any agency of Govt. of India and in case of any irregularities both shall be equally responsible 1. Operational Responsibility: Budget: (a) Budget is responsible for all customers interface (including contracts (marketing & rates) for Budget customers and all operational interaction with, Customers of both (Budget & Future Express). (b) Budget is responsible for all operational instructions and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s set out below:- "4. Apart from the changes as outlined at Para 2 above, some additional changes have been brought in the Regulations for the manual mode: (i) On the lines of similar requirement for Customs Cargo Service Providers (CCSP) under the Handling of Cargo in Customs Areas Regulations, 2009, a provision has been made prescribing the requirement of prior permission of customs if the Authorised Courier wants to sublet/outsource any of the components in the door-to-door supply chain. This is necessary since an Authorized Courier is defined as one, who, in relation to import or export of goods, is a person engaged in the international transportation of goods for export and imports on door-todoor delivery basis, and is registered in this behalf by the jurisdictional Commissioner. Also, the basic reason for expeditious clearance facilities being extended to them is that express companies have put in place verifiable and secure work processes on a global basis backed by an elaborate IT infrastructure for knowledge and information management. These companies have their own in-house mechanisms to guard against use of express supply chain by unscrupulous elements. Therefore, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout the rigour of obtaining permission each time. 5. In view of this, Board is of the view that relaxation from such permission merits consideration with regard to certain components of the supply chain before entry inwards/after clearance of the imported courier shipments and before carting in/after 'Let Export' of the export shipments. Accordingly, Board has decided that for functions namely pick-up or local delivery of export/imported courier packages/shipments, transportation for officials and housekeeping activities permission will not be required. Prior intimation would suffice. Needless to add, the authorised courier will ensure that due diligence is exercised and necessary checks carried out before outsourcing these activities." 33. It is, at once, clear that the import of the said Circular is to exempt courier agencies from seeking permission to outsource certain non-core activities; is not to enable a person carrying on the activity of custom clearance to masquerade as a courier. Outsourcing of activities, essentially means, that a person carrying on a business is not required to perform all activities himself. However, it is essential that the person outsou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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