2013 (3) TMI 348

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....X Logistics, Dubai, UAE, who had shipped the aforesaid consignment of ten packages having gross weight 295.20 kgs and chargeable weight 296.3 kgs vide Airway bill No. 157-62936871 dt. 19-2-2009 declaring nature of goods as 'Courier Material' and the same was consigned to M/s. ACX International, Ahmedabad. The respondent No. 1 claimed exemption from payment of duty under Notification No. 171/93-Cus., dt. 16-9-1993 as amended, by purported filing the prescribed Courier Bill of Entry in form CBE-IV for Samples and Free Gifts. However, based on intelligence, the detailed examination of the said 10 packages was carried out by SIIB section of H.Q. Ahmedabad and it was found to contain 'Richman Special Blend King Size Filter' Cigarettes - 2,00,000 Nos. classifiable under Tariff Item 24022090. The said consignment of Cigarettes valued at Rs. 7,00,000/- (LMV) and Rs. 1,03,512/- (CIF) was seized under Panchnama dt. 14-3-2010 on reasonable belief that the goods were liable for confiscation under Section 111 of Customs Act, 1962. The test report dt. 13-5-2009 of the sample drawn from the consignment confirmed that the cigarettes were having total length of 83 mm, the length of filter being 21 ....

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....ndent to redeem the impugned goods on payment of redemption fine and thereafter, I further order for absolute confiscation of the impugned goods valued (LMV) at Rs. 7,00,000/-. 2. In view of the absolute confiscation of the impugned goods, I further set aside the impugned order to the extent it demands duty under Section 28 along with interest under Section 28AB of Customs Act, 1962. 3. The impugned order, to the extent it imposes penalty on M/s. ACX International under Section 114A of Customs Act, 1962 is set aside. 4. The impugned order, to the extent it imposes penalty under Section 112 of Customs Act, 1962 on Shri Sujal Patel, Proprietor of M/s. ACX International is also set aside." 3. Revenue is aggrieved by such an order and hence is in appeal in both the appeals. 4. Ld. DR would submit that the impugned Order-in-Appeal is incorrect and is not based upon the facts and circumstances. He would take me through the Courier Imports & Exports (Clearance) Regulations, 1998 and reiterate the grounds of appeal, which are as under : "The appellate authority totally ignored the material facts that the courier booking receipt issued by M/s. MEX Logistic, Dubai shows 10 ....

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....its proprietor Shri Sujal Patel. In the instant case, violation of Regulation 13(a), (b), (c), (e) and (i) of the Courier Imports & Exports (Clearance) Regulations, 1998 is clearly established against the authorized courier and its proprietor Shri Sujal Patel. Thus, the deliberate act of filing CBE-IV by mis-declaring the goods, giving incomplete/fictitious address of consignees and without obtaining authorization from consignees with the fraudulent intention to smuggle the impugned goods rendered the goods liable for confiscation." 5. Ld. Chartered Accountant on behalf of the respondent would take me through the Order-in-Original. It is his submission that the goods have been absolutely confiscated by the appellate authority and Revenue is not in appeal against such absolute confiscation. It is his submission that the respondent are not the importer but are courier and are working under Courier Imports & Exports (Clearance) Regulations, 1998. It is his submission that the first appellate authority was correct in coming to the conclusion and setting aside the demand raised against the courier company and also the penalties imposed. 6. I have considered the submissions made by....

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....or any such information required for assessment of value of nature of goods. Clearance of the goods shall be subject to the percentage of examination as prescribed by the Board vide Circular No. 23/2006-Cus., dt. 25-8-2006 as amended from time to time. In case any duty liability is found to arise in course of assessment of the goods, the same may be assessed on CBE-IV itself. In respect of such Bills of Entry, the procedure prescribed under Para 10.5 below, mutatis mutandis, shall be followed. The courier bags covered under CBE-IV will be subjected to 100% X-ray scanning to ascertain the contents. Any discrepancy noticed during inspection/examination will be brought immediately to the notice of Deputy/Assistant Commissioner (C.B.C.)." It is evident that the possibility of discrepancy has been anticipated. There are, however, no directions for taking action against an authorized courier in case of any discrepancy is found. Indeed, this goes without saying that if there is any evidence to prove complicity of an authorized courier in any contravention, action can be taken against them. 17.1 Action, if any, would lie against a consignee in whose name the courier material (g....

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....171/93-Cus., dt. 16-9-1993 by declaring value less than Rs. 10,000/-. (iii) Failure to exercise due diligence to ascertain correctness and completeness of information which he submitted to Customs at the time of clearance. (iv) Goods were actually dutiable and CBE-V or CBE-X should have been filed. (v) Violation of Section 7 of Foreign Trade (Development & Regulation) Act, 1962 and Rule 11 of Foreign Trade (Regulation) Rules, 1993." 9. As against the above recorded finding, the case of the Revenue is that the respondent had filed the courier bill of entry in form CBE-IV, itself is an acceptance of the fact by the Revenue authorities that the respondent herein is functioning as a courier. It is also undisputed and clear from the facts that the respondent had been functioning as a courier and has received the disputed consignment from the courier based in Dubai. The respondent's action of filing the courier Bill of Entry with the other available material would itself indicate that the respondent had been functioning as a courier. Provisions of Section 114A of Customs Act, 1962 for imposition of penalty would arise only when the duty has not been levied or has been short l....