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TMI Blog2021 (11) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments. But apparently there is no such evidence. The initial burden was on the department. Hence finding in sub paragraph 2 of paragraph 5 of the order under challenge is apparently a wrong finding. The same para rather has discussed the precise advise as was given by the appellant to the sender of the impugned courier asking him to send the demonetized currency notes in person during his visit to India or through authorised representative, he being stationed abroad - There is nothing on record to show or indicate that it was appellant who has wilfully or intentionally made the declaration. Infact admittedly, the declaration is not made by the appellant, the question of it to be their wilful and intentional act does not at all arise - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2016 on the ground that said courier contains Indian currency (demonetised). The seizure of the aforesaid demonetised Indian currency amounting to ₹ 14,500/- was affected vide Panchanama dated 26.12.2016. Based on the aforesaid allegations that vide Show cause notice the confiscation of the said parcel under section 111 of Customs Act and penalty under section 112 A of the Customs Act was proposed to be imposed upon the appellant. The said proposal was initially confirmed vide Order-in-Original No. 1285 dated 4.12.2017. The appeal thereof has been rejected vide the order under challenge. Being aggrieved the appellant is before this Tribunal. 2. I have heard Shri Kishore Kunal, Shri Mehak Kanwar and Shri Sumit Khedaria, learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further emphasised that the appellant is not declarant in terms of section 82, question of invoking section 112 against him does not at all arise. Learned Counsel lay emphasis on the following case laws: i) Skycom Express (P) Ltd. vs. Principal Commissioner of Customs (Airport), Mumbai [ 2017 (357) ELT 996 (Tri-Mumbai]; ii) UPS Jetair Express Pvt. Ltd. vs. CC, Airport, Mumbai [2019 (365) ELT 461 (Tri-Mumbai)]; iii) Aramex India Pvt. Ltd. vs. Commissioner of Customs II, Airport [2018 (364) ELT 1064 (Tri-Mumbai)]; and iv) Uni-Sankyo Ltd. vs Commissioner of Customs (Airport) Mumbai [2004 (169) ELT 195 (Tri-Mumbai)]. Emphasis has also been laid on the decision of Tribunal in the case of Kuresh Laila vs. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the basic article is discussed by this Tribunal in the case of Commissioner of Customs, Mumbai vs. M. Vasi [2003 (151) E.L.T. 312 (Tri.-Mum.)]. Relevant paragraph is extracted below: 10. When the goods are imported by land, Sea or Air a Bill of Entry is filed for their clearance in terms of Section 46 of the Customs Act, 1962 where the responsibility of making a truthful declaration is upon the declarant and where any contravention or lapse can render the goods liable for confiscation and the declarant liable to pay penalty. In the case of baggage, as per Section 77 of the Customs Act the declaration is made by the passenger orally. Section 82 which deals with post parcels is entirely different in construction and in coverage. It does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed to be an entry for import or export, as the case may be for the purposes of this Act. 9. From the facts of the case, it is apparent that the Bank had no role till the said courier was delivered to it by the FedEx courier. It was for the Department to show that the Bank had a knowledge about the declaration given on airway bill that the annexed parcel has demonetized Indian currency goods but has been declared as documents. But apparently there is no such evidence. The initial burden was on the department. Hence finding in sub paragraph 2 of paragraph 5 of the order under challenge is apparently a wrong finding. The same para rather has discussed the precise advise as was given by the appellant to the sender of the impugned courier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted the documents for the purpose of filing of courier bill of entry. In my considered view this omission of the appellant, at the most, may attract the provisions of Courier Imports and Exports (Clearance) Regulations, 1998 and cannot be considered as violations for imposing penalty under Section 112(a) of the Customs Act, 1962. 8. In view of the foregoing penalty imposed on the appellant under Section 112(a) of the Customs Act, 1962 is set aside. 11. Otherwise also it was for Mr. Paul, the sender of courier to be aware of the provisions of Foreign Exchange Management (Export and Import of currency) Regulations, 2015. The Regulation 3 thereof and the Circular No. 146 dated 19.06.2014 issued thereunder by virtue of which Import ..... X X X X Extracts X X X X X X X X Extracts X X X X
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