Custom, Excise & Service Tax Tribunal
S And J Travels And Cargo Services Pvt. ... vs Commissioner Of Central Excise, ... on 14 October, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21881 / 2014 Application(s) Involved: C/Stay/22434/2014 in C/22196/2014-DB Appeal(s) Involved: C/22196/2014-DB [Arising out of Order-in-Original TVM-EXCUS-000-COM-38-13-14 dated 27/03/2014 passed by the Commissioner of Customs & Central Excise, Thiruvananthapuram] S And J Travels And Cargo Services Pvt. Ltd. T.C. No. 26/863, Panavila Junction, Thycaud Post Trivandrum 695 014 Kerala Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Trivandrum T.C. No.26/334 (1&2), I.C.E Bhavan, Press Club Road, Trivandrum 695 001 Kerala Respondent(s)
Appearance:
Mr. Manoj Pillai, Advocate TAXAIDE Hrishikesh, 25/2828, Mathrubhoomi Road, Vanchiyoor, Trivandrum - 695 035 For the Appellant Mr. N. Jagdish, AR For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 14/10/2014 Date of Decision: 14/10/2014 Order Per: B.S.V. MURTHY Commissioner of Customs & Central Excise, Trivandrum, issued Courier Registration No. 03/2010 under Regulatioin 10 of Courier Import and Export (Clearance) Regulations, 1998 (hereinafter referred to as CIECR) to the appellant to act as an authorized courier in Trivandrum International Airport. Intelligence was received that the courier operators at Trivandrum International Airport were importing non-bona fide unaccompanied baggage intended for trade/business and were clearing the same in the guise of bona fide gifts availing the benefit of Notification No. 171/93 Cus. dated 16.09.1993. In order to verify the existence and genuineness of the consignees for whom such imports were made, the appellant was asked to produce the consignee authorizations obtained by them under Regulation 13(a) of CIECR. The appellants maintained that they had produced the documents to the Additional Commissioner and Deputy Commissioner on 04.01.2012 and 28.12.2012. Further Managing Director had also given a statement that they had obtained authorization from each of the consignee for whom they acted as agents as required under Regulation 13(a) of CIECR.
2. When the matter was called, the learned counsel on behalf of the appellants submitted that the appellants had handed over all the authorizations to the Deputy Commissioner/Additional Commissioner and even then the Commissioner has reached a conclusion that they are not eligible for the benefit of notification on the ground that in respect of one authorization out of five produced by them with their reply, the declaration was given by the Managing Director, namely Shri. Stanley Paulus himself. Since the address of the consignee was C/o Island Aviations Services Ltd., Trivandrum, a view was taken that appellant was actually not importing the goods mentioned as bona fide gifts to the customers. It is his submission that if the department should have obtained and considered all the authorizations and duty could have been demanded only in respect of those authorizations where the importer was not found or found to be fictitious and denied having received the goods. He submits that where there were claims similar to the one made by them that authorizations had been handed over to the department but not verified and show-cause notice issued, this Tribunal had remanded the matter and he seeks remand of the issue in this case also.
3. Regulation 13(a) of CIECR provides for exemption to bona fide gifts sent to India through courier service provided and authorization from the importer is produced by the courier operator. For facilitating the couriers, it has also been provided that such authorization should be received at least at the time of delivery before making the delivery of the same if it was not available at the time of import and such authorizations are to be kept for a period of one year for the verification by the Revenue. This means that if the authorization is not available or found not to have been given by a receiver, the courier becomes the importer and becomes liable to pay duty since it cannot be said that the imported goods are bona fide gifts. Therefore prima facie it appears that the first step is to verify the authorization given by the importer and its genuineness and only then duty can be demanded from the courier. If the authorizations are not considered and at least a few authorizations are not proved to be bogus/fictitious, it may be unfair to demand the duty from the courier operator. Therefore we consider that matter requires more detailed consideration in the hands of the Commissioner and all the authorizations have to be considered and at least a few at random verified before demanding duty from the courier. Without expressing any opinion, we consider that the matter should be remanded at this stage to enable fresh adjudication on merits in accordance with law after giving reasonable opportunity to the appellants to present their case. Accordingly the impugned order is set aside and the matter is remanded to the original authority for deciding the matter afresh after giving reasonable opportunity to the appellants to present their case.
(Operative portion of the order has been pronounced in open court on 14.10.2014) (S.K. MOHANTY) JUDICIAL MEMBER (B.S.V. MURTHY) TECHNICAL MEMBER iss