TaxTMI 
TaxTMI 
2016 (7) TMI 1120
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....on 112 (a) of Customs Act, 1962. One appellant (M/s TNT India Pvt. Ltd.) is a courier company engaged in the clearance of Courier Cargo through Customs and another appellant (Shri Rakesh Kumar Gupta) is employee of the first appellant. The brief facts of the case are that the officers of DRI, Lucknow Zonal Unit conducted certain enquiries in July, 2012 w.r.t. certain parcels consigned to one Shri P.K. Tiwari, New Delhi. On physical verification of the parcels it was found that instead of declared goods of CD writer, the actual goods were found to be memory cards in large quantity. Further investigations were conducted which finally resulted in initiation of proceedings against various parties. Upon adjudication, the Original Authority order....
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....r company known internationally and have been following the provisions of Customs Act and the Courier Regulations deligently ; (b) the parcel which has come from Hong Kong was to have been delivered through the main appellant in terms of their arrangement with Hong Kong Courier company. Since the value declared in the document relevant to the parcel at the consignor's end is only U.S. $ 120, in terms of proviso to clause (i) of Regulation 12 (1) for "low value dutiable consignment" authorization of the consignee may be obtained at the time of delivery of consignment , (c) Regulation 5 deals with clearance of imported goods. It has been specifically stipulated that the courier package....
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....nee in the given address cannot be pre-verified in case of 'small value cargo' and the non-existence of consignee at the given address by itself cannot bring a charge of abetment against the courier company ; (g) the decided case laws on similar set of facts clearly bring out that no penal action can be taken against the appellant courier company. 3. The learned AR submitted that based on the detailed examination and finding of the Original Authority it is clear that the courier company did not discharge their obligation in terms of the Regulation 12 which attracted penal action. He relied on Tribunal's order in Grand Slam Express Pvt. Ltd. vs. CC, Airport, Mumbai reported in 2007 (216) E.L.T. 272 (Tri. -Mumbai) to s....
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.... to be given to consignor and also to verify the antecedent of consignor it is apparent that in such low value consignments the contact with the consignee will generally be at the time of post clearance stage. It is not the case that in respect of each and every parcel received for delivery through a courier including small value parcel, gift, document etc. a pre-verification of the background of the consignee is to be carried out and the bill for clearance can be filed only on due satisfaction of the antecedents of the consignees in respect of each such parcel. No such stipulation could be read into the regulation. 5. Further, the charge of abetment against the appellant was sought to be established on the ground that they have not full....
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.... there is no charge of malafide on the part of officers and also no charge of any pecuniary benefits accruing to the said officers. All these go to show that the officers have discharged their duty and the goods have been cleared after due examination. It is not clear then how the mis-declared item could be detected at the TNT hub of the courier company much away from the custom area. The Original Authority discounted the role of officers on the ground that the way bills were not tallied with the consignment at the time of examination in the TNT hub. However, he held the charge of abetment proved against the courier company only on the ground that they have failed in certain of their obligations under Regulation 12. Such failure resulted in....
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....xamination of cargo before clearance. 6. In Lemuir Air Express, New Delhi vs. CC, New Delhi reported in 1986 (26) E.L.T. 608 (Tribunal), the Tribunal held that when the air cargo agent had no knowledge about the contends of the consignment and relied upon the information passed on by the exporter to them penalty cannot be imposed on them. In Syndicate Shipping Services (P) Ltd. vs. CC (Imports), Chennai reported in 2004 (171) E.L.T. 72 (Tri. Chennai), the Tribunal held that there should be a case of intentionally aiding the commission of crime to hold the charge of abetment. In the absence of such intention being established penalty cannot be imposed. In Anchor Logistics vs. CC reported in 2013 (290) E.L.T. 334 (G....