Custom, Excise & Service Tax Tribunal
Airport, Mumbai vs Dhl Express (India) Pvt. Ltd on 15 December, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO: C/25/2010 [Arising out of Order-in-Appeal No: 208/Mumba-III/2009 dated 09/10/2009 passed by the Commissioner of Customs (Appeals), Airport, Mumbai.] For approval and signature: Hon'ble Shri P.G. Chacko, Member (Judicial) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? : No 2. Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? : Yes 3. Whether Their Lordships wish to see the fair copy of the Order? : Seen 4. Whether Order is to be circulated to the Departmental authorities? : Yes Commissioner of Customs Airport, Mumbai ...Appellant Vs DHL Express (India) Pvt. Ltd. ...Respondent
Appearance:
Shri B.P. Pereira, Authorised Representative (JDR) for the appellant.
None for the respondent.
CORAM:
Hon'ble Shri P.G. Chacko, Member (Judicial) Date of decision: 15/12/2010 ORDER NO: ____________________________ This appeal filed by the Revenue prays for imposition of penalty on the respondent, a courier, under Section 112(a) of the Customs Act. The original authority had imposed such penalty on the courier, but the Commissioner (Appeals) vacated it. Hence this appeal of the Revenue.
2. There is no representation for the respondent despite notice, nor any request of theirs for adjournment. I have examined the records and heard the JDR, who submits that firstly the respondent (courier) did not properly advise their client (consignee/importer) as required under Regulation 13 of the Courier Imports and Exports (Clearance) Regulations, 1998 and, secondly, the relevant Bill of Entry was filed without Import Export Code (IEC).
3. On a perusal of the records, I note that the Bill of Entry was filed by the importer's CHA and not by the courier. Apparently, this Bill of Entry was filed in terms of the first proviso to sub-regulation (3) of Regulation 5 of the aforesaid Regulations. This proviso reads thus:
"Provided that the Authorised Courier, or with the concurrence of the Authorised Courier, the consignee or a Customs House Agent on behalf of the consignee, may file a Bill of Entry in the form prescribed in the Bill of Entry (Forms) Regulations, 1976 for clearance of any of the imported goods".
The records of the case clearly show that the CHA of the consignee filed Bill of Entry on behalf of the consignee with the concurrence of the authorised courier. The concurrence of the authorised courier per se would not mean that the courier could be held liable under Section 112 of the Customs Act for any commission or omission of the consignee (importer) or his CHA. Regulation 13 of the aforesaid Regulations sets out the obligations of 'authorised courier'. One of the obligations is that the courier should advise his client to comply with the provisions of the Customs Act and Rules and Regulations made thereunder and, in case of non-compliance thereof, should bring the matter to the notice of the Assistant/Deputy Commissioner of Customs. This obligation of the authorised courier is relatable to cases where the courier files Bill of Entry on behalf of the consignee / importer. Where the Bill of Entry is filed by the CHA on behalf of the importer, what is relevant is the obligation of the CHA under the Customs House Agents Licensing Regulations (CHALR), 2004. In the present case, the Bill of Entry was filed by the CHA on behalf of the importer. The authorities, however, did not advert to any omission / commission of the CHA cognizable under the CHALR, 2004. On the other hand, the original authority chose to penalise the courier on the ground that the courier did not advise the consignee / importer to furnish IE Code. On the facts of this case, it was the CHA who could have advised the importer.
4. For the reasons aforesaid, I do not find fault with the appellate Commissioner's decision insofar as the respondent is concerned.
5. The appeal is dismissed.
(Dictated in Court) (P.G. Chacko) Member (Judicial) */as ??
??
??
??
4 4