Fle Fast Line Express Pvt. Ltd. Vs Commissioner of Customs (CESTAT Delhi)
Conclusion: Since authorized courier was prohibited from opening and verifying contents of imported consignments and it had not violated Regulation 12(1)(v) and therefore, revocation of the registration and forfeiture of security deposit under Regulation 13(1) and imposition of penalty under Regulation 14 could not be sustained.
Held: Assessee was an authorized courier under the Regulations. These Regulations apply to assessment and clearance of imported or export goods carried by an authorized courier by air on behalf of a consignee or consignor at Customs airports. Whenever any goods are imported through courier instead of the normal procedure in which the importer or a Customs Broker files a bill of entry for the imported goods, in courier imports, the authorized courier or his agent files an electronic manifest of the imported goods prior to its arrival with the proper officer in express cargo manifest – import (ECM – I) form. The authorized courier paid the import duty, if any, applicable on the imported goods and after clearance by the customs delivered the goods to the consignees and collected the customs duties from them. The declared goods were “Sample Shoes‟ and every airway bill had 30 pairs totalling 450 pairs. Information was received by customs authorities that branded shoes were being imported by some importers in the guise of “sample shoes‟ in association with assessee. So, they opened and examined the above 15 consignments of shoes of 30 pairs each and seized them under Section 110 of the Customs Act. Subsequent investigations showed that these were counterfeit goods and, therefore, they were confiscated under Section 111 of the Customs Act, 1962 for violation of intellectual property rights of the brand owner M/s. Nike. Therefore, a suspension cum show cause notice dated 29/11/2018 was issued to assessee. The Adjudicating Authority revoked the licence and forfeited the security deposit under Regulation 13(1), and imposed a penalty of Rs. 50,000/- under Regulation 14. It was held that assessee received the KYC documents of all the three alleged importers under the cover of their letters but they were received through Balvinder Singh. The only fault of assesssee was that instead of receiving the KYC documents directly from the hands of the owners, it received the documents with covering letters handed over by Balvinder Singh. This action of assessee did not constitute not exercising due diligence to ascertain the correctness and completeness of any information which he submitted to the proper officer with reference to any work related to the clearance of imported goods as required under Regulation 12(1)(v). From the facts of this case, it was found that the importers were genuine importers and they existed; the KYC documents were not fake; the Bills of Entry were filed as per the invoices; there is no evidence that the appellant was aware of the real contents of the consignments; the appellant had no authority to even open and verify the contents of the imported consignments; and there was no evidence that assessee was aware that the goods were actually imported by Balvinder Singh and not by the importers declared in the invoices. Therefore, assessee had not violated Regulation 12(1)(v) and therefore, revocation of the registration and forfeiture of security deposit under Regulation 13(1) and imposition of penalty under Regulation 14 could not be sustained.
FULL TEXT OF THE CESTAT DELHI ORDER
P.V. SUBBA RAO
This appeal has been filed by the appellant to assail the order dated 22/05/2019 passed by the Commissioner of Customs (Airport & General), New Delhi. By this order, the registration of the appellant under the Courier Imports and Exports (Electronic Declaration & Processing) Regulations, 20101 has been revoked and the entire amount of security deposit of Rs. 10 lakhs furnished by the appellant has been forfeited. Further, a penalty of Rs. 50,000/- has been imposed upon the appellant.
2. The appellant is an authorized courier under the Regulations. These Regulations apply to assessment and clearance of imported or export goods carried by an authorized courier by air on behalf of a consignee or consignor at Customs airports. Whenever any goods are imported through courier instead of the normal procedure in which the importer or a Customs Broker files a bill of entry for the imported goods, in courier imports, the authorized courier or his agent files an electronic manifest of the imported goods prior to its arrival with the proper officer in express cargo manifest – import (ECM – I) form. The courier packages containing the imported goods cannot be dealt with in any manner except as directed by the Commissioner of Customs and no person shall, except with the permission of proper officer, open any packages of imported goods. The authorized courier shall present the imported goods to the proper officer for inspection, screening, examination and assessment. Thereafter, the authorized courier pays the import duty, if any, applicable on the imported goods and after clearance by the customs delivers the goods to the consignees and collects the customs duties from them.
3. Since this is a sensitive job involving clearance of imported goods, the permission to operate as courier for import and export goods requires registration which is granted after ensuring that the necessary qualifications and conditions are made. Regulation 12 places some obligations on the authorized courier. Regulation 13 provides for the suspension and revocation of the registration of the authorized courier and forfeiture of security deposit on some grounds including failure of the authorized courier to comply with any of the provisions of the Regulations. Regulation 14 provides for imposition of penalty upto Rs. 50,000/- upon the authorized courier.
4. Regulation 12, 13 and 14 are reproduced:-
“12. Obligations of Authorised Courier.
(1) An Authorised Courier shall –
(i) obtain an authorisation, from each of the consignees or consignors of the imported goods for whom or from whom such Courier has imported such goods; or consignees or consignors of such export goods which such Courier proposes to export, to the effect that the Authorised Courier may act as agent of such consignee or consignor, as the case may be, for clearance of such imported or export goods by the proper officer;
Provided that for import of documents, gifts and samples, and low value dutiable consignments for which declaration have been filed in, Form-B or the Courier Bill of Entry-XI (CBE-XI), Form C or the Courier Bill of Entry-XII (CBE-XII) or Form-D or Courier Bill of Entry- XIII (CBE-XIII) respectively, the authorization may be obtained at the time of delivery of the consignment to consignee subject to the production of consignors authorisation at pre-clearance stage and retention of authorisation obtained from the consignee for a period of one year or date of Audit by Customs, whichever is earlier.
(ii) file electronic declarations, for clearance of imported or export goods, through a person who has passed the examination referred to in regulation 8 or regulation 19 of the Customs House Agents Licensing Regulations, 2004 and who are duly authorized under section 146 of the Act;
Provided that a transition period 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 there under 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 entitled to such information;
(vii) not withhold any information relating to assessment and clearance of imported goods or of export goods, from the Assessing Officer;
(viii) not attempt to influence the conduct of any officer of Customs in any matter pending before such officer or his subordinates by the use of threat, false accusation, duress or offer of any special inducement or promise of advantage or by the bestowing of any gift or favour or other thing or value;
(ix) 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 for a period of five years and submit them for inspection to the Assistant Commissioner of Customs or an officer authorised by him, wherever required; and
(x) abide by all the provisions of the Act and the rules, regulations, notifications and orders issued there under.
13. Suspension or revocation of registration of authorised courier.
(1) The Commissioner of Customs may revoke the registration of an Authorised Courier and also pass an order for forfeiture of security on any of the following grounds namely:-
(a) failure of the Authorised Courier to comply with any of the conditions of the bond executed by him under regulation 11;
(b) failure of the Authorised Courier to comply with any of the provisions of these regulations;
(c) misconduct on the part of Authorised Courier whether within the jurisdiction of the said Commissioner or anywhere else, which in the opinion of the Commissioner renders him unfit to transact any business in the Customs airport:
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 an inquiry to determine the ground and in the meanwhile pending the completion of such inquiry, may suspend the registration of the Authorised Courier:
Provided also that if the Authorised Courier, the no ground registration is so established suspended against shall be restored.
(2) Any Authorised Courier or the officer of the Customs authorised by the Chief Commissioner of Customs in this behalf, if aggrieved by the order of Commissioner of Customs passed under sub-regulation (1), may represent to the Chief Commissioner of Customs in writing against such order within sixty days of communication of the order to the Authorised Courier, and the Chief Commissioner of Customs shall, after providing the opportunity of being heard to the parties concerned, dispose of the representation as expeditiously as may be possible.
14. Penalty. –
An Authorised Courier, who contravenes any of the provisions of these regulations or abets such contravention or who fails to comply with any provision of these regulations with which it was his obligation to comply, shall be liable to a penalty which may extend to fifty thousand rupees.
5. The appellant filed declarations in respect of the following airway bills.
