Custom, Excise & Service Tax Tribunal
M/S. Dhl Express (India) Private Ltd vs Commissioner Of Customs, Mumbai on 27 February, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No.C/246/2011-Mum (Arising out of Order-in-Appeal No. 137/Mumbai III of 2010 dt. 10.1.2011 passed by the Commissioner of Customs (Appeals) Mumbai-III ) For approval and signature: Honble Mr. Anil Choudhary, Member (Judicial) ============================================================
1. Whether Press Reporters may be allowed to see :
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M/s. DHL Express (India) Private Ltd.
:
Appellant
VS
Commissioner of Customs, Mumbai
:
Respondent
Appearance
None for Appellant
Shri S.J. Shahu, Assistant Commissioner (A.R) for respondent
CORAM:
Mr. Anil Choudhary, Member (Judicial)
Date of hearing : 27/02/2015
Date of decision: 27/02/2015
ORDER NO.
Per : Anil Choudhary
The appellant DHL Courier is in appeal against the Order-in-Appeal No. 137/MUM-III/2010 dt. 20.12.2010 passed by the Commissioner of Customs (Appeals), Mumbai.
2. The brief facts are that appellant on behalf of M/s. Precision Enterprises filed form-V Bill of Entry for the import of second hand SO2 Analyser for repairs on 13.11.2008, for clearance of the same through the appellant DHL Express (India) Pvt. Ltd. It is alleged against the courier that they have failed to inform the Customs authorities that the goods are second hand and, accordingly, they are guilty of non-performance of duty for non- declaration and accordingly penalty of Rs.25000/- have been imposed under Section 112(a) of the Customs Act. Being aggrieved the appellant had preferred an appeal before the Commissioner (Appeals). During the hearing the ground was raised that the goods in question were second hand capital goods and are not restricted under para 2.17 of FTP 2004-09 and are not liable for confiscation and accordingly penalty could not have been imposed under Section 112(a) of the Customs Act. The goods were not liable for confiscation. It was further contented that the appellant is only a courier service agency, and as such is an agent of the importer and hence they are not liable for any penalty. It was further contended that there is no case for mis-declaration as it is seen from the invoice of the exporter and also from the invoice of the appellant courier, that the goods are imported for repair and for re-import in the country of export. It is further not in dispute that the M/s. Precision Enterprises is engaged in the business of repairing old and used machines. The Commissioner (Appeals) was pleased to dismiss the appeal of the appellant, and observed as follows:
The goods imported in this cae is SO2 Analyser. Since the impugned goods are not used for producing, manufacturing etc., the same cannot be considered as capital goods. Further, it is evident that the definition of Capital Goods does not cover parts of capital goods. Hence, the impugned goods which are second hand goods, are restricted items under para 2.17 and are liable for confiscation. More over as per para 2.12 of the Exim Policy no export or import shall be made by any person without an IEC unless specifically exempted. Thus, IEC number is mandatory in this case.
The Courier Company M/s. DHL Express India Pvt. Ltd., Mumbai, filed the Courier Bills of Entry (Form-V) not declaring the goods as old/used/second hand, and importer having no IEC. The Courier Company had deliberately ignored this fact & attempted to clear the goods by declaring the said goods through the Courier Bills of Entry. In view of this, the courier company has failed to exercise due diligence to ascertain the correctness of condition of the goods & thus, acted in violation of the Regulation 13(b), (c) & (e) of the Courier Import and Export Regulations 1998 and hence, and therefore they are liable to penal action under Section 112(a) of the Customs Act 1962.
Being aggrieved the appellant is before this Tribunal.
3. The appellant is absent, inspite of several opportunities given, and accordingly the appeal is being disposed of after hearing the Ld. AR and perusing the records. This Tribunal finds no case of mis-declaration by the courier, as it is evident on the face of the document the invoice and courier shipment airway bill that the import in question is made for repairs and thereafter for sending back. These documents are annexed to the bill of entry at the time of clearance. As such the authorities below are in error in holding that a case of mis-declaration and suppression is made out against the appellant courier agency. Further SO2 Analyser is a capital goods under para 9.12 of FTP, which includes instrument for testing, research, quality on pollution control. Thus the appeal is allowed. Courier agency is entitled to refund of pre-deposit made during the investigation or pending of proceedings.
(Pronounced & Dictated in court) (Anil Choudhary) Member (Judicial) Sm 4