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TMI Blog2022 (5) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 12(1) (i) of the Courier Regulations, cannot be agreed upon. The appellant did not disclose/ declare the actual consignor/consignee for the purpose of the clearance of their goods. Therefore, the department was not wrong in alleging that the appellant had mis-declared the details in House Air Way Bills (HAWB), in terms of consignee-consignor address, value, quantity and description of goods. By applying the principle of preponderance of probability, we find it quite logical to accept the contention of the department that the the appellant had an intention to evade payment of customs duty. The Government has been simplifying the law and procedure relating to imports through courier from time to time. Accordingly, lot of trust and reliance has been placed on the courier agencies. A very clear procedure has been put in place by way of Courier Regulations to stream line the imports through Courier mode. It was incumbent upon the appellant Courier agency to adhere to the Regulations in order to safeguard the interest of Revenue and the trust placed on them. The appellant Courier was mandated to work within legal framework of the Customs Act, 1962, Rules and Regulations made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r staff due to carelessness. The appellant submitted cancellation receipts and KYC documents of the consignor and consignees and requested for a lenient view. The proceedings culminated in the issue of Order-in-original dated 25.09.2019, by the Deputy Commissioner. The value of the impugned goods, valued at Rs. 1,79,403/-, was enhanced under Section 111(l) and 111(m) of the Customs Act while giving an option to redeem on payment of Redemption Fine of Rs.80,000 and applicable duties and penalties of Rs. 7,000/- and Rs. 2,00,000/- were also imposed on the appellant under Sections 112 and 114AA of the Act. The appellant accepted the said Order dated 25.09.2019 and paid up the levies and did not file any appeal. 4. The Commissioner of Customs (Import General), New Custom House, New Delhi, suspended the courier licence of the appellant with immediate effect; issued a show cause notice dated 23.12.2019 seeking an explanation as to why the License should not be revoked and appointed an Inquiry Officer to determine the grounds for revocation of the license of the appellant. The Inquiry Officer submitted the Inquiry Report on 20.03.2020 and concluded that the appellant contravened the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only grave and serious violations justify revocation; and in other cases, suspension for adequate period of time resulting in loss of business and income suffices, both as punishment for infraction and as a deterrent to future violations. Learned counsel submits that this judgment has been affirmed by the Supreme Court [ 2015 (320) E.L.T. A175 (S.C.) ]. 7. Learned counsel further submits that the appellant also brought to the notice of the Commissioner his financial, economic and family problems/conditions after closure of his business. However, the Commissioner did not pay any heed to the submissions qua miserable conditions of the appellant and imposed such a severe punishment which has snatched away his livelihood forever. The appellant has already suffered enormously. Therefore, in the conspectus of circumstances, the impugned Order dated 25.06.2020 is bad in law and deserves to be set aside. 8. Shri Nagendra Yadav, learned Authorised Representative, appearing for the department submits that in view of the provisions of Customs Act and the Courier Regulations, the appeal against revocation of Courier License lies with Chief Commissioner and not CESTAT; the submission of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt tried to get the goods cleared duty free in the guise of gift shipments by undervaluation; and initially it filed Courier Bill of Entry-XII meant for gift shipments but when undervaluation was unearthed, it filed Courier Bill of Entry-XIII meant for dutiable goods. This act clearly shows that the appellant did so intentionally for monetary benefit and that the serious offence jeopardizing Revenue s interest took place, which cannot be dealt with leniency. 11. Learned Authorised Representative submits that the revocation of licence is justified and he relies on the ratio of the case KM Ganatra Co. vs. Commissioner of Customs [ 2016 (332) E.L.T. 15 (S.C.) ]. On the issue of need for due diligence on the part of the appellant, learned Authorised Representative relies on the ratio of decisions of CESTAT in Millennium Express Cargo Pvt Ltd. vs. Commissioner of Customs, New Delhi [ 2017 (346) E.L.T. 471 (Tri. - Del.) ], which was further affirmed by Delhi High Court [ 2017 (354) E.L.T. 467(Del.) ] and Rubal Logistics Private Limited vs. Commissioner of Customs (General), New Delhi [ 2019 (368) E.L.T. 1006 (Tri. -Del.) ]. On the appellants claim for commensurate punishment, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignor s end at Bahrain and Doha and that as soon as the error was noticed, the same was communicated to the appellant and it sought amendment of the declarations but meanwhile officers of Special Investigation and Intelligence Branch (SIIB) intercepted the consignments and started investigation. 15. The reasoning given by the appellant cannot be accepted. It is very difficult to believe that there was a technical glitch and clerical error at both places abroad at the same time. The appellant did not produce any evidence, either before the Commissioner or before this Bench to substantiate this submission. It only submitted that it had cancelled the consignments and returned the packets to the senders. However, no evidence of such cancellation was given. It is very difficult to believe that a courier agency working at an international level would work in this unprofessional manner. Assuming that the contention of the appellant that the consignments which were destined to Maharashtra and other States other than the seven States mentioned in the above cited Public Notice have by mistake arrived at Delhi. The most logical explanation would have been showing evidence to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or Deputy Commissioner of Customs (v) Regulation 12(1)(v) of CIER, 2010 : An Authorised Courier shall exercise due diligence to ascertain the correctness and completeness of any information which he submits to the proper officer with reference of any work related to the clearance of imported goods or export goods. (vi) Regulation 12(1)(v) of CIER, 2010: An Authorised Courier shall not withhold any information relating to assessment and clearance of imported goods or of export goods, from the Assessing Officer (vii) Regulation 12(1)(v) of CIER, 2010: An Authorised Courier shall abide by all the provisions of the Act and the rules, regulations, notifications and order issued thereunder . 17. The Enquiry Officer has given a clear finding that by acts of commission and omission, the appellant clearly violated the provisions of Regulation 4(2), 5(4), 12(1) (i), 12(1) (iii), 12 (1) (v), 12 (1) (vii) 12 (1) (x) of the Courier Regulations, the provisions of Public Notice No.03/2019 and the provisions of Section 111 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsignee as stated in the ECM vis-a-vis those mentioned on the declaration pasted on the packages, establishes that they have also obtained wrong authorisation from the consignor which is required at the pre-clearance stage.' Hence, I hold that the Noticee have not acted in accordance with the Regulation 12(l)(i) of the CIER, 2010. 28.4. Against the allegation of violation of the Regulation 12(1)(iii) of the CIER 2010, the Noticee have submitted that 'the said issue was addressed before the designated officer as and when the Noticee got constructive knowledge about the inadvertent omission'. I find this to be a fallacious argument as it has been established beyond doubt that the Noticee had prior knowledge of the discrepancies yet they went ahead with their efforts to get the shipments Custom cleared. Not only did the Noticee not advise their clients about the restrictions stipulated by the PNs but did not inform the department about the discrepancies in the shipments. The impugned goods were mis-declared not only in terms of description but their value was also not correctly declared. This only affirms the view of that the Noticee was the kingpin of the whole scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signee was given wrongly, the appellant would have been in no position to obtain the requisite authorization from the actual consignor/consignee as mandated in the Regulation 12(1) (i) of the Courier Regulations. The appellant did not disclose/ declare the actual consignor/consignee for the purpose of the clearance of their goods. Therefore, the department was not wrong in alleging that the appellant had mis-declared the details in House Air Way Bills (HAWB), in terms of consignee-consignor address, value, quantity and description of goods. By applying the principle of preponderance of probability, we find it quite logical to accept the contention of the department that the the appellant had an intention to evade payment of customs duty. The conclusion is fortified by the fact that the appellant had accepted the enhanced value and paid up the differential duty without raising a protest. It is apparent that the appellant attempted to get the dutiable goods cleared in guise of gift consignments. But for the interception by Customs Officers, organised evasion and flouting of Rules on the part of the appellant would have gone unnoticed. The commissioner has brought out each of the viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been placed on the courier agencies. A very clear procedure has been put in place by way of Courier Regulations to stream line the imports through Courier mode. It was incumbent upon the appellant Courier agency to adhere to the Regulations in order to safeguard the interest of Revenue and the trust placed on them. The appellant Courier was mandated to work within legal framework of the Customs Act, 1962, Rules and Regulations made thereunder. The appellant failed to do so. The appellant did not exercise due diligence in submitting the correct and complete information to the assessing officer with reference to the impugned goods. By violating the Regulations, it had given scope for massive misuse of the facility given in addition to loss of Revenue. In short, the appellant courier agency has breached the trust reposed on it by the Revenue. Therefore, the revocation of License is justified and any leniency shown in the misconduct of this nature would send wrong signals. Punishment of revocation of Licence would certainly go a long way to act as a deterrent. In view of the above, there is no reason to interfere with the impugned order and, accordingly, the appeal is liable for reje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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