Custom, Excise & Service Tax Tribunal
M/S. Aviation Star Express vs Cc, Chennai on 15 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
C/340, 341/2012
(Arising out of Order-in-Appeal C.Cus. No. 894 & 895/2012 dated 31.07.2012, passed by the Commissioner of Customs(Appeals), Chennai).
For approval and signature
Honble Shri P.K. DAS, Judicial Member
__________________________________________________________
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M/s. Aviation Star Express, : Appellants
Vs.
CC, Chennai : Respondent
Appearance Shri A.K. Jayaraj, Adv., for the appellants Shri M. Ram Mohan Rao, DC (AR), for the respondents CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 15.07.2013 Date of Decision: 15.07.2013 FINAL ORDER No.40463-40464/2013 Common issue involved in these appeals and therefore, both are taken up together for disposal. The appellants filed these appeals against imposition of penalties of Rs.10,000/- each under Section 112 (a) and Section 117 of the Customs Act, 1962.
2. The appellant is a Courier Company registered with the Customs authorities under the provisions of Import and Export (Clearance) Regulations, 1998. The appellant filed the Express Airway Bill No. 07481 and 07482 both dated 19.01.2009 followed by Bill of Entry No. 0463 dated 20.01.2009 addressed to one Shri Ashok, Mumbai and Shri Abdullah, Mumbai both containing 40 numbers of Binoculars of commercial quality each of about Rs.84,000/- and Rs.1,12000/- respectively. The goods were seized as the consignees were non-existent in both the cases. The original authority confiscated the goods absolutely under Section 111 (m) of the Customs Act, 1962, on the ground of mis-declaration of the value of the goods and importing them in fictitious name and also imposed a penalty of Rs.10,000/- in each case under Section 112 (a) and Section 117 of the Customs Act, 1962, on the appellants amongst others. The Commissioner (Appeals) rejected the appeals filed by the appellants.
3. The Ld. Advocate submits that in both the cases two show cause notices dated 12.05.2009 were issued and there was no proposal of imposition of penalty on the appellants and merely a copy of the show cause notice was forwarded to them. After about one year corrigendum to show cause notice dated 11.05.2010 was issued proposing imposition of penalty to the appellants. He submits that the penalties are liable to set aside primarily on the ground that no allegation was made against the appellants in the purported show cause notice. He relies upon the decision of the Honble Supreme Court in the case of GTC Industries Ltd. Vs. Collector of Central Excise, New Delhi 1997 (94) ELT 9 (S.C.). He further submits that the findings of the original authority for imposition of penalty are beyond the show cause notice. He further submits that without prejudice, the penalty was imposed on the ground that the appellant has not taken authorisation, in violation under the Courier Imports and Exports (clearance) Regulations, 1998. There is no penal provision except de-registration of the licence under the same Regulations and therefore penalty is liable to be set aside. He further submits that in the show cause notice, there is no allegation of omissions/commissions of the offence against the appellant.
4. The Ld. AR on behalf of the Revenue, reiterates the findings of the Commissioner (Appeals). He drew the attention of the Bench to the allegations made in the show cause notice, and the proposal in the corrigendum to show cause notice is based on the allegations narrated in the first show cause notice. He further submits that it is clear from the show cause notice that the appellant filed the airway bills on non-existence of the consignees and therefore the appellants attempted to clear the goods illegally. He relied upon the decision of the Tribunal in the case of Punjab State Container & Warehousing Corporation Ltd. Vs. CC (Export) 2012 (278) ELT 330 (Tri.-Mum.). He submits that the appellants contravened the provisions of Regulation and filed the airway bills followed by Bill of Entry in the name of fictitious persons.
5. After hearing both the sides and on perusal of the records, I find from the show cause notices dated 12.05.2009 that the appellant Shri Kannan, Operations Executive of the appellants firm, in his voluntary statement dated 07.02.09, admitted that one of his friend Mr. Ravi, who was a CHA introduced him to one Mr. Prasad from M/s. Golden Wings Logistics, asked him to clear them through customs. He also admitted that Mr. Prasad has not given any authorisation letter to him for clearing the consignments through customs. On investigation, it was found that in both the cases, the letters issued by the Customs to the Consignees were returned back as incomplete address and Not known. It is clearly evident that the appellant had filed Airway Bills to clear the consignments but, did not obtain any authorisation from the consignees. This fact was not disputed by the Ld. Advocate. The main contention of the Ld. Advocate is that filing of the Airway Bills and Bill of Entry with authorisation is covered under the Courier Imports and Exports (clearance) Regulations, 1998. Therefore, the penalty cannot be imposed under the Customs Act. It is also contended that the corrigendum to show cause notice has not implicated the appellant.
6. In the facts and circumstances of the case, I am unable to accept the contention of the submission of the Ld. Advocate. It is seen that the corrigendum to show cause notice was issued on the basis of the facts as narrated in the first show cause notice, which is not disputed by the appellant and therefore, corrigendum to show cause notice is not a fatal issue. The case law relied upon by the Ld. Advocate is not applicable in the present case. In that case, the Honble Supreme Court observed that each show cause notice must be limited to the case that is made out therein by the Revenue. In the present case, the Revenue has not made out any new case in the corrigendum to show cause notice. In fact, the proposal in the corrigendum to show cause notice was based on the facts of the first show cause notice and therefore, the said case law could not apply herein. The other issue, the contention of the Ld. Advocate is that the penalty under the Customs Act cannot be imposed for non-filing of authorisation under the Courier Imports and Exports (Clearance) Regulations, 1998, cannot be accepted. It is noted that in exercise of powers conferred by Section 157 of the Customs Act, 1962, the Central Board of Excise and Customs made Regulations, 1998. In the present case, it is seen that the penalty was imposed on the ground that the appellant filed the Bill of Entry under fictitious names which is within the purview of Section 112 (a) of the Customs Act, 1962.
7. In view of the above discussion and after considering the submissions of both sides, I reduce the penalty to Rs. 5000/- in each case. Appeals are disposed of in the above terms.
(Order dictated and pronounced in the open Court) (P.K. Das) Judicial Member BB 2