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(4) The Authorised Courier shall present the export goods to the proper officer, in such manner as to the satisfaction of the proper officer or as per instructions issued by the Board or Public Notice issued by 7[Principal Commissioner of Customs or Commissioner of Customs, as the case may be], from time to time, for inspection, screening, examination and assessment thereof.

(5) Any export goods brought into customs area for export purpose and have not been exported within seven days of arrival of such goods into such area or within such extended period as permitted by the proper officer in case of delay due to such reasons which the proper officer considers to be beyond the control of the concerned Authorised Courier and declared exporter, may be detained by the proper officer and sold or disposed off by the person having custody thereof, after issuing notice to the concerned Authorised Courier and declared exporter provided the charges payable, for storage and handling of such goods are paid by such Authorised Courier."

On plain reading of the above legal provisions, it transpires that clearance of goods through courier mode is governed by specific legal provisions and a separate Regulations have been framed under Section 84 ibid, which regulate the clearance of export goods. In terms of Regulation 6(2)(b), the appellants-courier had to take necessary permission from the Customs officer to open any package that is brought for export in customs area. Further, in order to invoke Section 114 ibid, there are twin requirements to be fulfilled. One is that (i) the impugned goods shall be liable to confiscation, and the Second (ii) the person on whom the penalty is proposed or imposed, should have done some act or omitted to do certain act, which would render the export goods liable for confiscation.

C/85051/2023, C/85054/2023 & C/85617/2023

7. It is a fact on record, that the appellants-courier receive the shipments for export on 'said to contain' basis. Further, they had categorically specify as a part of the conditions of carriage of the goods from the consignor, that the items which are prohibited shall not be carried and in respect of goods which require any special license or permit, the shipper/exporter should indicate the same and it would be their responsibility for proper compliance with such requirements. Further, Regulation 6(2)(b) ibid specifically provide that no person shall open any package which have been received for export in customs area without obtaining permission of the Customs officer. Under these circumstances, I find that there was no possibility for the appellants to have acted in any manner so as to export any prohibited goods. The facts of the case also provide in detail the sequence of events leading to consignor booking the consignment with the appellant-courier. That the subject goods were of in personal possession of one Ms. Veena Jyotikumar Mehta who had sent these goods to her daughter, who is settled in Australia and that Shri Pradeep Achuthan Poliyath, were assisting her, as she had already travelled to Australia, and due to weight restrictions, she had left these goods for transporting the same to her daughter. From the factual matrix of the case, I do not find any evidence or document to show that the appellants are involved in such illegal export. Further, the authorities below have also failed to place on record any such evidence to show that the appellants have committed an act or omitted to do any act, which would render them liable to penalty under Section 114 ibid. Therefore, I am of the considered opinion that the impugned order imposing penalties on the appellants does not stand the scrutiny of law.

"7. Regulation 4(2) of Courier Regulations, 2010 provides that the export goods shall bear a declaration from the sender or consigner regarding the contents of each of the packages and the total value thereof. Further, Regulation 6(2)(b) ibid mandates that no person shall, except with the permission of proper Officer, open any package of export goods, brought into the customs area, to be loaded on the flight. On perusal of the above Regulations, it would transpire that courier agency has very limited role in checking of the consignments contained in the courier packages. Thus, it cannot be said that the appellant had the reason or occasion to inspect the contents of the package and accordingly, relied on the declaration made by the consigner for the purpose of preparation of the shipping bills. The department has not proved the fact with any substantial evidence that there was prior knowledge on the part of the appellants in respect of the allegations made against them. Therefore, as per settled principle of law, as relied on by the Ld. Advocate for the appellants, provisions of Section 114(i) ibid cannot be invoked, justifying imposition of penalties."