Custom, Excise & Service Tax Tribunal
Sachin Awari vs Commissioner Of Customs-Air Special ... on 25 November, 2024
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
MUMBAI
REGIONAL BENCH - COURT NO. I
CUSTOMS APPEAL No. 85051 of 2023
[Arising out of Order-in-Appeal No. MUM-CUSTM-AMP-APP-2117 TO 2119/2021-22 dated
31.03.2022 passed by the Commissioner of Customs (Appeals), Mumbai-III]
Sachin Awari .... Appellants
Clearance Broker for Fedex Express Transportation and Supply Chain
Services (India) Private Limited
Boomerang Wing, A & B, 8th Floor
Chandivali Farm Road, Andheri (East)
Mumbai - 400 076.
VERSUS
Principal Commissioner of Customs .... Respondent
Airport Special Cargo (APSC) Commissionerate
Mumbai Customs Zone - III, Near Air Cargo Complex
Sahar, Andheri (East), Mumbai - 400 099.
WITH
CUSTOMS APPEAL No. 85054 of 2023
[Arising out of Order-in-Appeal No. MUM-CUSTM-AMP-APP-2117 TO 2119/2021-22 dated
31.03.2022 passed by the Commissioner of Customs (Appeals), Mumbai-III]
Fedex Express Transportation and Supply Chain .... Appellants
Services (India) Private Limited
Boomerang Wing, A & B, 8th Floor
Chandivali Farm Road, Andheri (East)
Mumbai - 400 076.
VERSUS
Principal Commissioner of Customs .... Respondent
Airport Special Cargo (APSC) Commissionerate
Mumbai Customs Zone - III, Near Air Cargo Complex
Sahar, Andheri (East), Mumbai - 400 099.
AND
CUSTOMS APPEAL No. 85617 of 2023
[Arising out of Order-in-Appeal No. MUM-CUSTM-AMP-APP-2117 TO 2119/2021-22 dated
31.03.2022 passed by the Commissioner of Customs (Appeals), Mumbai-III]
Sushil Baraskar .... Appellants
Authorized Representative of Fedex Express Transportation
and Supply Chain Services (India) Private Limited
Boomerang Wing, A & B, 8th Floor
Chandivali Farm Road, Andheri (East)
Mumbai - 400 076.
2
C/85051/2023, C/85054/2023
& C/85617/2023
VERSUS
Principal Commissioner of Customs .... Respondent
Airport Special Cargo (APSC) Commissionerate
Mumbai Customs Zone - III, Near Air Cargo Complex
Sahar, Andheri (East), Mumbai - 400 099.
APPEARANCE:
Ms. Srinidhi a/w Shri Akshay, Advocates for the Appellants
Shri Ranjan Kumar, Authorized Representative for the Respondent
CORAM: HON'BLE MR. M.M. PARTHIBAN, MEMBER (TECHNICAL)
FINAL ORDER NO. A/87108-87110/2024
Date of Hearing: 08.10.2024
Date of Decision: 25.11.2024
PER: M.M. PARTHIBAN
These appeals have been filed by M/s Fedex Express Transportation
and Supply Chain Services (India) Private Limited, Mumbai along with Shri.
Sachin Awari, Customs Broker, Shri Sushil Baraskar, Authorised
Representative of the aforesaid company (herein after, for short, referred
together as 'the appellants') assailing the Order-in-Appeal No. MUM-CUSTM-
AMP-APP-2117 TO 2119/2021-22 dated 31.03.2022 (referred to, as 'the
impugned order') passed by the Commissioner of Customs (Appeals),
Mumbai-III.
2.1 Brief facts of the case are that the appellant M/s Fedex Express
Transportation and Supply Chain Services (India) Private Limited, is an
authorised courier approved by the jurisdictional Commissioner of Customs
for handling import or export of goods by courier mode as provided under
Section 83, 84 of the Customs Act, 1962 and the Regulations made
thereunder viz., Courier Imports and Exports (Electronic Declaration and
Processing) Regulations, 2010. The appellants had presented vide Shipping
Bill declaration CSB-II No. 050948 dated 25.02.2018, covering 68 shipments
for allowing Let Export Order to be exported through flight No. Air India AI-
342 dated 25.02.2018. The export goods was subjected to 5% to 10%
examination by Customs officer, and upon examination of Serial No. 36 on
CSB-II with Airway Bill No. 425870753326, exported by consignor Shri
Pradeep Achuthan Poliyath, it was showing declaration 'Unsolicited Gift
Indian God Statues' (made of metal). Upon such examination, the Customs
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C/85051/2023, C/85054/2023
& C/85617/2023
officers suspected these items to be antique and old statutes. As the antiques
are prohibited for export under Antiquities and Art Treasures Act, 1972, the
export goods covered under the said Airway bill was detained for verification
and valuation by the Approved Valuers and Archeological Survey of India
(ASI) in order to ascertain whether they were antiques or otherwise.
Accordingly, such export goods were examined by the ASI authorities and it
was certified by the Superintendent Archaeologist of ASI, Mumbai vide letter
dated 02.05.2018 certifying that out of the three objects, two objects viz.,
Bronze standing Parvati and Bronze Shiva (Chandrasekhar) statues are of
antiquity and the Bronze Krishna statue is 'non antiquity'.
2.2 After conducting detailed investigation, the department had initiated
show cause proceedings against the exporter and the appellants in this case,
proposing for confiscation of export goods and for imposition of penalty on
them by issue of Show Cause Notice (SCN) No. C/07/2018 dated
05.11.2018. In adjudication of the case, the original authority had confirmed
the proposals made in the SCN vide Order-in-Original dated 26.02.2021,
which included imposition of penalty of Rs. 5000/- each, on the three
appellants in these appeals, under Section 114 (i) and (iii) of the Customs
Act, 1962. Being aggrieved with the above order, the appellants have
preferred an appeal before the Commissioner of Customs (Appeals), who in
the impugned order had upheld the order of the original authority and
dismissed the appeal filed by the appellants. Feeling aggrieved with the
impugned order, the appellants have filed these appeals before the Tribunal.
3. Heard both sides and perused the records of the case. I have also
perused the additional written submission made in the form of paper book.
4. The issue for consideration before the Tribunal in this case is to
determine whether imposition of penalty on the appellants under Section
114 (i) and (iii) of the Customs Act, 1962 is sustainable or not.
5. In order to address the above issue, I would like to refer the relevant
legal provisions contained in Sections 84, 114 of the Customs Act, 1962 and
Regulation 6 of the Courier Imports and Exports (Electronic Declaration and
Processing) Regulations, 2010.
"CHAPTER XI - SPECIAL PROVISIONS REGARDING BAGGAGE, GOODS
IMPORTED OR EXPORTED BY POST, COURIER AND STORES
Section 84. Regulations regarding goods imported or to be
exported by post or courier.
4
C/85051/2023, C/85054/2023
& C/85617/2023
The Board may make regulations providing for--
(a) the form and manner in which an entry may be made in respect of goods
imported or to be exported by post or courier
(b) the examination, assessment to duty, and clearance of goods imported
or to be exported by post or courier;
(c) the transit or transhipment of goods imported by post or courier, from
one customs station to another or to a place outside India.
Section 114.
Penalty for attempt to export goods improperly, etc. -
Any person who, in relation to any goods, does or omits to do any act which
act or omission would render such goods liable to confiscation under section
113, or abets the doing or omission of such an act, shall be liable,--
(i) in the case of goods in respect of which any prohibition is in force under
this Act or any other law for the time being in force, to a penalty 26[not
exceeding three times the value of the goods as declared by the exporter
or the value as determined under this Act], whichever is the greater;
(ii) in the case of dutiable goods, other than prohibited goods, subject to
the provisions of section 114A, to a penalty not exceeding ten per cent of
the duty sought to be evaded or five thousand rupees, whichever is higher;
Provided that where such duty as determined under sub-section (8) of
section 28 and the interest payable thereon under section 28AA is paid
within thirty days from the date of communication of the order of the proper
officer determining such duty, the amount of penalty liable to be paid by
such person under this section shall be twenty-five per cent of the penalty
so determined;
(iii) in the case of any other goods, to a penalty not exceeding the value of
the goods, as declared by the exporter or the value as determined under
this Act, whichever is the greater."
Clearance of export goods.
"Regulation 6. (1) Notwithstanding anything contained in these
regulations, except where the export is under Duty Drawback, Remission of
Duties and Taxes on Exported Products (RoDTEP) or Rebate of State and
Central Taxes and Levies (RoSCTL) schemes,] the Authorised Courier or his
agent shall, on or after such date as the Board may specify, by notification
in the Official Gazette, file in an electronic form, a manifest for export goods
before its export with the proper officer the Courier Export Manifest (CEM)
in Form F.
(2) (a) The courier packages containing the export goods shall not be dealt
with after presentation of documents to the proper officer in any manner
except as may be directed by the 2[Principal Commissioner of Customs or
Commissioner of Customs, as the case may be];
(b) No person shall, except with the permission of proper officer,
open any package of export goods, brought into the Customs area,
to be loaded on a flight.
(3) The Authorised Courier or his agent who has passed the examination
referred to in regulation 6 or regulation 13 of the Customs Brokers Licensing
Regulations, 2018 shall make entry of goods for export, in Courier Shipping
Bill-III (CSB-III) for documents in Form G or in the Courier Shipping Bill-IV
(CSB-IV) for bona fide gifts, commercial samples and prototypes of goods
and re-export of durable container including accessories thereof, imported
in relation to COVID -19 vaccines in Form H or as the case may be, in
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C/85051/2023, C/85054/2023
& C/85617/2023
Courier Shipping Bill-V (CSB-V) for any other commercial goods, involving
transfer of foreign exchange, in Form HA, before presenting it to the proper
officer.
...
(4) The Authorised Courier shall present the export goods to the proper officer, in such manner as to the satisfaction of the proper officer or as per instructions issued by the Board or Public Notice issued by 7[Principal Commissioner of Customs or Commissioner of Customs, as the case may be], from time to time, for inspection, screening, examination and assessment thereof.
(5) Any export goods brought into customs area for export purpose and have not been exported within seven days of arrival of such goods into such area or within such extended period as permitted by the proper officer in case of delay due to such reasons which the proper officer considers to be beyond the control of the concerned Authorised Courier and declared exporter, may be detained by the proper officer and sold or disposed off by the person having custody thereof, after issuing notice to the concerned Authorised Courier and declared exporter provided the charges payable, for storage and handling of such goods are paid by such Authorised Courier."
On plain reading of the above legal provisions, it transpires that clearance of goods through courier mode is governed by specific legal provisions and a separate Regulations have been framed under Section 84 ibid, which regulate the clearance of export goods. In terms of Regulation 6(2)(b), the appellants-courier had to take necessary permission from the Customs officer to open any package that is brought for export in customs area. Further, in order to invoke Section 114 ibid, there are twin requirements to be fulfilled. One is that (i) the impugned goods shall be liable to confiscation, and the Second (ii) the person on whom the penalty is proposed or imposed, should have done some act or omitted to do certain act, which would render the export goods liable for confiscation.
6. In the impugned order, the learned Commissioner (Appeals) had given a finding that the shipping bill was filed by the appellant M/s Fedex Express Transportation and Supply Chain Services (India) Private Limited, in a casual manner without insisting for proper scrutiny/justification, for ensuring that the export goods are not prohibited / restricted for export. The appellant Shri Sushil Baraskar had not taken NOC from concerned authorities and also had not obtained a declaration from the shipper/consignor. The appellant Shri Sachin Awari had took decision on his own and had not informed his superiors about the export goods. Therefore, for all these omission or commission, learned Commissioner (Appeals) had upheld the order of the original authority and rejected the appeal filed by the appellants.
6C/85051/2023, C/85054/2023 & C/85617/2023
7. It is a fact on record, that the appellants-courier receive the shipments for export on 'said to contain' basis. Further, they had categorically specify as a part of the conditions of carriage of the goods from the consignor, that the items which are prohibited shall not be carried and in respect of goods which require any special license or permit, the shipper/exporter should indicate the same and it would be their responsibility for proper compliance with such requirements. Further, Regulation 6(2)(b) ibid specifically provide that no person shall open any package which have been received for export in customs area without obtaining permission of the Customs officer. Under these circumstances, I find that there was no possibility for the appellants to have acted in any manner so as to export any prohibited goods. The facts of the case also provide in detail the sequence of events leading to consignor booking the consignment with the appellant-courier. That the subject goods were of in personal possession of one Ms. Veena Jyotikumar Mehta who had sent these goods to her daughter, who is settled in Australia and that Shri Pradeep Achuthan Poliyath, were assisting her, as she had already travelled to Australia, and due to weight restrictions, she had left these goods for transporting the same to her daughter. From the factual matrix of the case, I do not find any evidence or document to show that the appellants are involved in such illegal export. Further, the authorities below have also failed to place on record any such evidence to show that the appellants have committed an act or omitted to do any act, which would render them liable to penalty under Section 114 ibid. Therefore, I am of the considered opinion that the impugned order imposing penalties on the appellants does not stand the scrutiny of law.
8.1 I find that in similar set of facts, arising in the case of Bombino Express Private Limited Vs. Commissioner of Customs, Airport, Mumbai - 2017 (358) E.L.T. 890 (Tri. - Mumbai), the Coordinate Bench of the Tribunal in Final Order No. A/85862/2017-WZB/SMB dated 14.10.2016, have held that it is normal practice to rely upon document furnished by the consignors and the ingredients for imposition of penalty are absent. The relevant paragraph in the said order is extracted and given below:
"6. The appellant is a courier that accepts packages from other booking agencies. There is no requirement for the courier to examine cargo or items that are shipped through them. It is a normal practice for such entities to rely upon the documents furnished by those who actually do the booking at the customer's end. No evidence has been cited and no allegation has been made other than failure on the part of the appellant as a licenced courier to ascertain and declare the goods correctly. The impugned order having set aside one of the penalties imposed on the courier in the proceedings and 7 C/85051/2023, C/85054/2023 & C/85617/2023 there being no evidence that the appellant was aware of the illegal nature of the shipment being effected or that the appellant was aware that the owner was the said Syed Ismail and not Frankie as mentioned in the documents, the ingredients for the imposition of penalty under Sections 114 and 14AA does not exist."
8.2 I find that the disputed issue in the present case have been already dealt in by the Tribunal in the case of TNT India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi - 2018 (363) E.L.T. 199 (Tri.- Del.). In this case, the tribunal have held that the courier company has a very limited role, as they rely on declaration of consignor for preparation of shipping bill and the department had not proved any prior knowledge to invoke penal provision on the appellants. The relevant paragraph of the said order is extracted and given below:
"7. Regulation 4(2) of Courier Regulations, 2010 provides that the export goods shall bear a declaration from the sender or consigner regarding the contents of each of the packages and the total value thereof. Further, Regulation 6(2)(b) ibid mandates that no person shall, except with the permission of proper Officer, open any package of export goods, brought into the customs area, to be loaded on the flight. On perusal of the above Regulations, it would transpire that courier agency has very limited role in checking of the consignments contained in the courier packages. Thus, it cannot be said that the appellant had the reason or occasion to inspect the contents of the package and accordingly, relied on the declaration made by the consigner for the purpose of preparation of the shipping bills. The department has not proved the fact with any substantial evidence that there was prior knowledge on the part of the appellants in respect of the allegations made against them. Therefore, as per settled principle of law, as relied on by the Ld. Advocate for the appellants, provisions of Section 114(i) ibid cannot be invoked, justifying imposition of penalties."
9. In view of the foregoing discussions and analysis, I do not find any merits in the impugned order dated 31.03.2022 passed by the learned Commissioner (Appeals), to the extent it had imposed penalties on the appellants.
10. In the result, by setting aside the impugned order dated 31.03.2022 to the extent it had imposed penalties on the appellants, the appeals filed by the appellants are allowed in their favour.
(Order pronounced in the open court on 25.11.2024.) (M.M. PARTHIBAN) MEMBER (TECHNICAL) SM