The Bangalore bench of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) has set aside the penalty under Section 117 of the Customs Act, 1962, citing no import of prohibited or restricted goods.
The appellant M/s. Orbit Trans Express & Freight Pvt. Ltd., appellant is an authorized courier agent holding 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 impugned order revoked the license, enforced the Bond and Bank guarantee.
In addition to a penalty Rs.50,000/- each was imposed on 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. Aggrieved by the impugned order, a present appeal was filed.
Mr. G.B. Eshwarappa representing 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 are brought by her by taking assistance from others.
Mr. Rajesh Shastry, representing for the revenue submitted 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.
Further submitted that appellant has contravened the provisions of regulation 12(i) of Courier Import and Export (Electronic Declaration and processing) Regulation, 2010. It was also added that the appellant 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 further, 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.
The bench found that as regards penalty on the appellant under Section 117 of the Customs Act, 1962, it can be invoked only where no express penalty is elsewhere provided for such contravention or failure. However, in the present proceedings a penalty was proposed by invoking penal provisions under Regulation 14 of the Courier Import and Export (Electronic Declaration and processing) Regulation, 2010. Thus, invoking the penal provision under Section 117 of the Customs Act, 1962 was unsustainable
As regards violation of the Regulation 12 (iv) & (vi) of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010, the adjudicating authority held that the delivery address of the importer is in Delhi and appellant has not verified the identity of the client by using reliable, independent document. Considering the finding in ibid paras, customs authority, who had initially made allegation that the appellant assisted M. Elias to commit fraud on the Government using a dummy and bogus importer accepted the letter of the importer and released the goods after adjudication to the very same importer, cannot later turn around and conclude that the import is made in the name of a bogus importer. Moreover, even 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
The two member bench of the tribunal comprising P.A Augustin ( Judicial member ) and Pullela Nageswara Rao ( Technical member) concluded that the appeal was allowed by setting aside revocation of courier license and enforcement of Bond and Bank guarantee executed in connection with registration/license. Penalty imposed on the appellant under Section 117 of the Customs Act, 1962 was set aside.
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