Custom, Excise & Service Tax Tribunal
M/S Dhl Express (India) Pvt. Ltd vs Commissioner Of Customs, Mumbai on 9 September, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. C/244/11 (Arising out of Order-in-Appeal No. 134/Mumbai-III/2010 dated 10.1.2011 passed by the Commissioner of Customs (Appeals), Mumbai). For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s DHL Express (India) Pvt. Ltd. Appellant Vs. Commissioner of Customs, Mumbai Respondent Appearance: None for Appellant Shri M.S. Reddy, Dy. Commissioner (AR) for Respondent CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 09.09.2014 Date of Decision: 09.09.2014 ORDER NO. Per: Shri Anil Choudhary
This appeal arises out of Order-in-Appeal No. 134/Mumbai-III/2010 dated 10.1.2011 passed by the Commissioner of Customs (Appeals), Mumbai.
2. The brief facts of the case are that the appellant, M/s DHL Express India Pvt. Ltd. (a Courier) filed Courier shipping bill declaring samples and personal gifts for export of 150 pcs. of T-Shirts on behalf of exporter M/s Olam Export (India) Ltd., value declared as Rs.15,000/-. On detailed examination, MRP value came to Rs.1,52,150/- as per price tags attached with the 150 T- Shirts and were of commercial nature. As per Regulation 2(e)(v) of the Courier Import & Export (Clearance) Regulations, 1998, these regulations shall not apply to goods, where the value of the consignment is above Rs.25,000/- and transaction in foreign exchange is involved. The exporter has submitted invoice of value of Rs.15,000/- and no G.R. waiver or specific permission from the Reserve Bank of India was produced at the time of export. The courier viz. DHL Express (I) Pvt. Ltd. filed CSB on behalf of the exporters and did not declare true value of the export goods. The courier thus had ignored this fact and attempted to clear the goods by declaring incorrect value. The adjudicating authority in the Order-in-Original confiscated the goods under Section 113(d) of the Customs Act, 1962, with the option for redemption of the goods on the payment of redemption fine. Penalty was imposed on Exporter and appellant-Couriers under Section 114(ii) of the Customs Act.
3. Being aggrieved the appellant have preferred appeal before the Commissioner (Appeals), who vide the impugned order dismissed the appeal upholding the adjudication order.
4. Being aggrieved, the appellant have preferred appeal before this Tribunal on the ground that the provisions of Section 114(ii) are not applicable under which penalty has been imposed, as the section provides for penalty for attempt to export goods improperly by 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. As the appellant have not made any false declaration and the declaration made by it was true to the best of its knowledge and belief as per the instructions of the shipper or sender of export goods. The appellant has not abetted in the evasion of duty, if any, and the penalty has been imposed in a mechanical manner without considering the facts on record and/or conduct of the appellant. Further, there was no case of mis-declaration on the part of the appellant and further there is no case of violation of obligations on the part of the appellant as a Courier under Regulation 13 of Courier Imports and Exports (Clearance) Regulations, 1998. Further in the facts that the goods were not for export for value and were sent by way of sample and or material to be used at the conference by the sender company at Singapore and were also not for export under any drawback scheme or export where no duty involved, no penalty is exigible on the appellant.
5. As the appellant is absent in spite of notice, the appeal is taken up for ex parte hearing.
6. Heard the learned AR and perused the records.
7. Having considered the rival contentions, I find that the appellant had appeared for personal hearing on 13.12.2010 before the Commissioner (Appeals) and had contended that the T-Shirts have been exported for promotion purpose and not by way of sale, nor the export was under any beneficial scheme and further no duty was leviable on the said goods and accordingly, there was no case of any mis-declaration and or failure as per Regulation 13(b) of the Courier Imports and Exports (Clearance) Regulations, 1998 and as such, no penalty was leviable on them. I further find that the said contention of the appellant have neither been found to be wrong nor rejected in the impugned order and as such I hold that the impugned order is perverse and contrary to the facts on record. Thus, the impugned order is set aside and the appeal is allowed in favour of the appellant. Penalty imposed on the appellant under Section 114(ii) of the Customs Act stands set aside.
(Dictated and pronounced in Court) (Anil Choudhary) Member (Judicial) Sinha 1