The Bangalore bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) set aside the penalty imposed under the Customs Act, 1962 as the allegation of dummy or fraud import without corroborative evidence.
M/s. Orbit Trans Express & Freight Pvt. Ltd., the appellant is an authorized courier agent holding a Courier License issued by Airport and Air Cargo Commissionerate, Bengaluru. Alleging that the appellant had abetted M/s. KT Technologies, New Delhi to import goods through Bengaluru Airport by mis-declaring the value, proceedings were initiated and adjudication authority as per the impugned order revoked the license, and enforced the Bond and Bank guarantee.
In addition to a of penalty Rs.50,000/- each was imposed on the appellant under Regulation 14 of the Courier Import and Export (Electronic Declaration and Processing) Regulation, 2010 and under Section 117 of the Customs Act, 1962.
The appellant submitted that the appellant has not committed any illegality as alleged. The entire allegation regarding non-bonafide import is made based on the statement recorded from the importer at the initial stage of investigations and later, the importer admitted that the goods were brought by her by taking assistance from others.
The Adjudication Authority held that unfortunately, the investigation could not find any under-valuation or misdeclaration related to the 6(six) CBEs
It was found that the penalty Section 117 of the Customs Act, 1962, can be invoked only where no express penalty is elsewhere provided for such contravention or failure. However, in the present proceedings penalty is proposed by invoking penal provisions under Regulation 14 of the Courier Import and Export (Electronic Declaration and Processing) Regulation, 2010.
A two-member bench of Mr P.A. Augustian, Member (Judicial) and Mr Pullela Nageswara Rao, Member (Technical) observed that the appellant is only facilitating the customs transaction on behalf of the principal, (importer/exporter), 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 the omission /commission of exporter/importer. Moreover, in the impugned order, Adjudication Authority itself held that there is no illegality revealed related to goods cleared through the appellant.
It was found by the Tribunal that as per the allegation in the SCN, there is no import of prohibited/restricted goods and there is no allegation related to goods cleared by appellant.
While allowing the appeal the CESTAT set aside the revocation of the courier license and enforcement of Bond and Bank guaranty executed in connection with registration/license. Further set aside the Penalty imposed on the appellant under Section 117 of the Customs Act, 1962 and the penalty imposed under Regulation 14 of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010.
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