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1) N.S. Mahesh Vs. Commisisoner Of Customs

-2018(363) E.L.T. 644 (Tri.-Bang.)

2) Skypak Service Specialists, Ltd., Vs. CC, Mumbai

-2002 (149) E.L.T. 1464 (Tri.-Mumbai)

3) Aramex India Pvt., Ltd., Vs. CC (Airport), Mumbai

-2017(357) E.L.T. 420 (Tri.-Mumbai)

6. The Learned AR reiterated the finding and drew our attention to the findings in the impugned order and submits that there was a gross mis-declaration in the classification, description, quantity, duty etc. in the bills of entries filed for the said consignments, which were intercepted. The shipments were not only filed without proper KYC verifications and authorization of the importer, but were delivered to Mr. Elias, which is in total violation of the extant legal provisions and the KYC norms. Learned AR further submits that Shri Mujeeb K T, proprietor of Customs Appeal No. 20048/2024 M/s. Pigeon International admitted that he has not received any authorization for filing the subject Courier bills of entry from Ms. Kajal Thakur, proprietor of M/s K T Technologies and that the CBEs were filed on "trust" placed on Shri M. Elias, thus, M/s. Pigeon International has contravened the provisions of Regulation 12(i) of Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010. Learned AR further submits that the appellant M/s Pigeon International and co-accused, M/s Orbit Trans Express & Freight pvt. Ltd. had filed the CBEs and had facilitated the import of the shipments of M/s K T Technologies in contravention of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010, which they are duty bound to comply. Moreover, appellant has not fulfilled the obligations under Regulation 12 of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010 and have also not fulfilled the commitments that they undertook in the bonds executed by them, when they were issued license to operate as an Authorized Courier. Further, they failed to adhere to the Regulations and the terms and conditions of the bond. Learned AR further submits that Shri. Mujeeb K T, proprietor of M/s. Pigeon international has also admitted that Shri M. Elias had filed the subject Bills. However, Shri. Mitaighar Elias is not a person entitled to file electronic declarations, for clearance of imported or export goods, as is required under Regulation 8 or Regulation 19 of the Customs brokers Licensing Regulations, 2013 and not duly authorized under Section 146 of Customs Act, 1962. Also, Shri. Customs Appeal No. 20048/2024 Mitaighar Elias was appointed by Shri Mujeeb K. T. as an executive for clearance and not in capacity of Customs Broker. Thus, M/s. Pigeon International has contravened the provisions of Regulation 12(ii) of Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010.

9. Further, from the Showcase notice available on record, it is not understood whether the Showcase is issued under the provisions of Custom Act, 1962 or under the provisions of Customs Appeal No. 20048/2024 Courier Imports and Exports (Electronic Declaration and processing) Regulations, 2010. In the present appeal, unlike the other proceedings, against very same SCN, in addition to the penalty imposed under Courier Imports and Exports (Electronic Declaration and processing) Regulations, 2010, there was a proposal to impose penalty on the appellant under Section 117 of the Customs Act, 1962. Both the proceedings are separate and reason for invoking penal provisions under the Courier Regulation and Section 117 of the Customs Act, 1962 together is not understood. Thus, once proceedings against the importer is dropped by invoking Section 28(6)(1) of the Customs Act, 1962, penalty of Rs. 50,000/- imposed on appellant under Section 117 of the Customs Act, 1962 is unsustainable, specially in such a case, where Adjudication authority concluded the proceedings against the importer under Section 28(6)(1) of the Customs Act 1962. With regard to imposition of penalty on Customs Broker, their omission/commission will not attract penalty as their acts are in capacity of facilitator of the customs transactions and they are bound to facilitate the authorized clearance work of importer/exporter. Therefore, the Customs Broker is only facilitating the customs transaction on behalf of principal, (importer/exporter). Therefore, the absence of mens-rea, penalty is not imposable, otherwise all the customs transaction will come to halt, if penalty is imposed on the Customs Broker for the omissions /commissions of exporter/importer.

12. Regarding violation of the Regulation 12(iii) of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010, as per para 48 of the impugned order it is alleged that the appellant had resorted to subletting the license as associated courier, however there is no admissible evidence to that effect. The proprietor of the firm only stated that during Covid period, they have appointed Shri M. Elias as an executive due to his inability to carry out activities in Bangalore, which cannot be considered as subletting and to allege violation of the Regulation 12(iii) of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010 is not tenable.

15. We find that as regards the penalty under Regulation Regulation 14 of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010, considering the revocation of the Courier license, since September 2023, a lenient view can be taken. Thus, the penalty imposed on the appellant under Regulation 14 of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010 is reduced to Rs. 25,000/-.

Customs Appeal No. 20048/2024