2025 (10) TMI 18 - HC - Customs

Challenge to disagreement note dismissed; Rs 50,000 penalty under Regulation 12(1)(v) upheld; courier registration not revoked, security not forfeited.

M/s. Dart Air Services Pvt. Ltd. Versus Commissioner of Customs (Airport And General).

HC dismissed the challenge to the disagreement note and upheld the Commissioner of Customs' order dated 26 Aug 2019 imposing a penalty of Rs 50,000 for ... Challenge to disagreement note issued by the office of the Commissioner of Customs (Airport & General), New Custom House, New Delhi - suspension of the Petitioner’s registration - violation of Regulation (12)(1)(iii), (v) and (vii) of the 2010 RegulationsRegulation (12)(1)(iii), (v) and (vii) of the 2010 Regulations - HELD THAT:- Under Regulation 13, the registration of an Authorised Courier can be revoked on the grounds specified therein such as non-compliance of its obligations, misconduct etc. A perusal of the Regulation 13A would show that the enquiry report itself is not binding and the Principal Commissioner or Commissioner of Customs can consider the enquiry report and pass such orders as may be necessary. The submission, therefore, that the enquiry report had completely exonerated the Petitioner and, therefore, no penalty could have been imposed, would not be tenable submission. It is further noted that under Regulation 14, if the Authorized courier has acted contrary to any provisions of the Regulations, 2010 or abets any contravention, or fails to comply with the provisions of the Regulations, 2010, the Commissioner of Customs is well within his rights to take action. In the present case, after the SIIB’s investigation, there were various facts which were revealed that commercial goods were being sent under the disguise of `gifts’. The Courier Agency failed to notice the same which clearly shows non-exercise of due-diligence. In fact, the Commissioner of Customs, in its order dated 26th August, 2019 upheld the inquiry report only to the extent that there is no violation of Regulation 12 (1)(iii) and 12 (1)(vii). However, insofar as the Regulation 12(1)(v) is concerned, required level of due diligence may not have been exercised by the Petitioner leading to imposition of penalty. A perusal of the final order which has been passed on 26th August, 2019 would show that the Commissioner of Customs has refrained from revoking the courier registration of the Petitioner and has also not forfeited the security submitted by the Petitioner at the time of issuance of the courier registration - However, a penalty of Rs 50,000/- has been imposed on the Petitioner in the order dated 26th August, 2019. Such an order would be well within the jurisdiction of the Commissioner in terms of Regulations 13A(7) and Regulation 14 of the Regulations, 2010. This Court is of the opinion that the order passed on 26th August, 2019 is clearly within the jurisdiction of the Commissioner of Customs and the penalty imposed of Rs 50,000/- in terms of Regulation 14 does not warrant any interference - Petition dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether the report of an inquiry officer under the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010 is binding on the Principal Commissioner/Commissioner of Customs, or whether the Commissioner may, after considering the inquiry report and representations, pass such orders as he deems fit under Regulation 13A(7). 2. Whether the Commissioner of Customs had jurisdiction to impose a penalty under Regulation 14 where the inquiry officer had not found contravention of certain clauses of Regulation 12, but the Commissioner recorded disagreement (by a disagreement note) with the inquiry report on the issue of non-exercise of due diligence (Regulation 12(1)(v)). 3. Whether the facts found by the investigating branch (that consignments described as 'gifts' were in commercial quantity and repeatedly sent by the same consignor to the same consignee for stitching and re-export) established failure of due diligence by an authorised courier within the meaning of Regulation 12 and thereby justified exercise of powers under Regulations 13/13A and penalty under Regulation 14. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Binding nature of inquiry report and scope of Commissioner's powers under Regulation 13A(7) Legal framework: Regulation 13 permits suspension/revocation of registration for specified grounds and contemplates inquiry if prima facie grounds are not established. Regulation 13A sets out procedure for revoking registration and expressly provides in clause (7) that the Principal Commissioner or Commissioner 'shall, after considering the report of the inquiry and the representation thereon, if any, made by the Authorised Courier, pass such orders as he deems fit.' Precedent Treatment: No judicial precedent was cited in the judgment to render the inquiry report binding; analysis proceeds from the text of the Regulations. Interpretation and reasoning: The Court interprets Regulation 13A(7) as expressly leaving the final decision-making power with the Principal Commissioner/Commissioner after consideration of the inquiry report and representations. The inquiry report is not conclusive or binding upon the Commissioner; rather it is an input to the decision-making process. The Commissioner therefore retains jurisdiction to accept, reject or disagree with findings of the inquiry officer and to pass appropriate orders. Ratio vs. Obiter: Ratio - the court's conclusion that an inquiry report is not binding and that the Commissioner may pass orders as he deems fit under Regulation 13A(7) is decisive for disposition of the petition. Conclusion: The Commissioner was competent to disagree with the inquiry report and to proceed to pass orders under Regulation 13A(7); the inquiry report did not oust the Commissioner's statutory powers. Issue 2 - Jurisdiction to impose penalty under Regulation 14 despite partial exoneration by the inquiry officer Legal framework: Regulation 14 provides that an Authorised Courier who contravenes any provision of the Regulations or abets contravention or fails to comply with obligations shall be liable to penalty which may extend to fifty thousand rupees. Regulation 12 imposes various obligations on authorised couriers, including due diligence (Reg.12(1)(v)). Precedent Treatment: No case law was relied upon to limit the Commissioner's power to impose a penalty where the inquiry officer exonerates on some clauses; the judgment relies on statutory text. Interpretation and reasoning: The Court reasons that because Regulation 13A(7) empowers the Commissioner to pass such orders as he deems fit after considering the inquiry report, and Regulation 14 separately supplies penal authority for contraventions of the Regulations, the Commissioner may impose a penalty even if the inquiry officer did not find violation of all alleged clauses. The Commissioner's order is within jurisdiction where he finds a failure to exercise due diligence under Regulation 12(1)(v). Ratio vs. Obiter: Ratio - the finding that the Commissioner could impose penalty under Regulation 14 notwithstanding partial findings in the inquiry report is central to the decision. Conclusion: The Commissioner lawfully exercised jurisdiction to impose a penalty under Regulation 14 after disagreeing with portions of the inquiry report; the mere fact of partial exoneration does not preclude imposition of penalty if the Commissioner, on consideration, finds a contravention deserving penalty. Issue 3 - Application of Regulation 12(1)(v) (due diligence) to the established facts and sufficiency to warrant penalty Legal framework: Regulation 12 sets out obligations of authorised couriers, including advising clients about compliance (iii), verifying IEC and identity (iv), exercising due diligence to ascertain correctness and completeness of information submitted (v), and not withholding information from assessing officers (vii). Regulation 14 prescribes the penalty for contraventions. Precedent Treatment: No precedents were invoked; the Court applies the statutory obligations to the factual findings of the investigation. Interpretation and reasoning: The SIIB investigation revealed that consignments described as gifts were repeatedly sent by the same consignor to the same consignee at the same address in commercial quantities for tailoring and subsequent re-export. The Courier failed to detect or report these indicia of commercial trade and misdescription. The Court finds that such failure denotes lack of required due diligence under Regulation 12(1)(v). The Commissioner's inquiry report was upheld only in respect of Regulations 12(1)(iii) and 12(1)(vii) but disagreed on 12(1)(v), and imposed penalty limited to Rs.50,000. The Court reasons that courier agencies have a responsibility to exercise due diligence and report suspicions; the facts established are adequate to support the Commissioner's conclusion of inadequate due diligence. Ratio vs. Obiter: Ratio - the application of Regulation 12(1)(v) to the factual matrix and the holding that the established facts justify imposition of penalty under Regulation 14 are determinative. Conclusion: The Commissioner's finding that the authorised courier failed to exercise the requisite due diligence under Regulation 12(1)(v) is supported by the facts of repeated misdescription and commercial importation; such failure justified imposition of the penalty of Rs.50,000 under Regulation 14. Miscellaneous procedural/relief conclusions Interpretation and reasoning: On the exercise of the statutory powers and the facts, the Commissioner refrained from revoking registration or forfeiting security but imposed a monetary penalty. The Court finds no ground to interfere with the exercise of discretion or the quantum of penalty imposed in the circumstances. Ratio vs. Obiter: Ratio - dismissal of challenge to the Commissioner's order and upholding of the penalty as within jurisdiction and not warranting interference. Conclusion: The Court dismissed the petition challenging the disagreement note and the consequential order, held that the Commissioner acted within jurisdiction under Regulations 13A(7) and 14, and affirmed the penalty; directions were given for deposit of the penalty within the prescribed period.