TaxTMI 
TaxTMI 
2022 (5) TMI 497
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....hat there were discrepancies in respect of seventeen consignments. Eight boxes were found to be consigned to States other than the seven States (i.e. Delhi, Haryana, Punjab, Himachal Pradesh, Jammu and Kashmir, Uttar Pradesh and Uttarakhand) permitted by the Public Notice and in respect of nine consignments names/addresses of the consignees mentioned in the declarations and on the on the invoices attached/pasted on the packages were different. 3. Proceedings were initiated under the provisions of Customs Act, 1962 [the Customs Act]. The appellant by letter dated 24.7.2019 submitted that due a technical problem in the software used for generating addresses in their Doha and Bahrain office, the addresses were wrongly printed and the details of the invoices were not double checked by their staff due to carelessness. The appellant submitted cancellation receipts and KYC documents of the consignor and consignees and requested for a lenient view. The proceedings culminated in the issue of Order-in-original dated 25.09.2019, by the Deputy Commissioner. The value of the impugned goods, valued at Rs. 1,79,403/-, was enhanced under Section 111(l) and 111(m) of the Customs Act while giving a....
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....ment that the appellant planned to make illegal gain out of these imports; and having regard to the facts and circumstances in totality, the punishment inflicted upon the appellant is not proportionate to the offence, which was of technical nature. In this connection the learned counsel pointed out that the principles of proportionality have been explained by the Delhi High Court in Ashiana Cargo Services vs. Commissioner of Customs (I & G) [2014 (302) E.L.T. 161 (Del.) ]. The High Court held that punishment must be proportionate to gravity and nature of infraction by CHA; every infraction of CHA Regulations, either under Regulation 13 of Customs House Agents Licensing Regulations, 2004 or elsewhere, cannot lead to revocation of licence; in line with proportionality analysis, only grave and serious violations justify revocation; and in other cases, suspension for adequate period of time resulting in loss of business and income suffices, both as punishment for infraction and as a deterrent to future violations. Learned counsel submits that this judgment has been affirmed by the Supreme Court [2015 (320) E.L.T. A175 (S.C.)]. 7. Learned counsel further submits that the appellant also....
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....claim. The appellant had no explanation for the misdeeds of their offices at the Consignor location in which they were also accomplices. 10. Learned Authorised Representative submits that the representative of the appellant in his statement admitted that he was aware about the Public Notices, yet the appellant acted in utter disregard of the Public Notice and what is striking is the fact that the violations took place on 30.05.2019, immediately after the issuance of Public Notice. Learned Authorised Representative submits that the appellant failed to establish that it had exercised due diligence; appellant's submission that there is no evidence that the appellant was going to get any monetary benefit by mis-declaring the goods is also not sustainable; the appellant tried to get the goods cleared duty free in the guise of gift shipments by undervaluation; and initially it filed Courier Bill of Entry-XII meant for gift shipments but when undervaluation was unearthed, it filed Courier Bill of Entry-XIII meant for dutiable goods. This act clearly shows that the appellant did so intentionally for monetary benefit and that the serious offence jeopardizing Revenue's interest took place, ....
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....ates other than the 7 States permitted vide Public Notice dated 7.5.2019; that in consignments imported by the appellant courier agency, there were discrepancies with respect to the address of the consignees; some of the consignments were addressed to States which were not mentioned in the Public Notice cited above; that it had violated the provisions of Courier Regulations and the Public Notice dated 07.05.2019 issued by Commissioner (Air Cargo Complex) Export, New Delhi. 14. The appellant does not deny the aforesaid facts. The appellant submits that the mistake occurred at the end of their overseas counterpart. The appellant submitted that the mistake occurred due to clerical error and technical glitches at the consignor's end at Bahrain and Doha and that as soon as the error was noticed, the same was communicated to the appellant and it sought amendment of the declarations but meanwhile officers of Special Investigation and Intelligence Branch (SIIB) intercepted the consignments and started investigation. 15. The reasoning given by the appellant cannot be accepted. It is very difficult to believe that there was a technical glitch and clerical error at both places abroad at the....
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....ms, from time to time , for inspection , screening, examination and assessment thereof'. (iii) Regulation 12(1)(i) of CIER, 2010: An Authorised Courier shall obtain an authorisation, from each of the consignees or consignors of the imported goods for whom or from whom such Courier has imported such goods; or consignees or consignors of such export goods which such Courier proposes to export, to the effect that the Authorised Courier may act as agent of such consignee or consignor, as the case may be, for clearance of such imported or export goods by the proper officer...' (iv) Regulation 12(1)(iii) of CIER, 2010:"An Authorised Courier shall advise his consignor or consignee to comply with the provisions of the Act, rules and regulations made thereunder and in case of non-compliance thereof, he shall bring the matter to the notice of the Assistant Commissioner or Deputy Commissioner of Customs" (v) Regulation 12(1)(v) of CIER, 2010 : "An Authorised Courier shall exercise due diligence to ascertain the correctness and completeness of any information which he submits to the proper officer with reference of any work related to the clearance of imported goods or export goods." (....
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....isation as per the ECM details but the boxes had different consignee-consignor pasted on them to whom the boxes were actually meant to be delivered. Natural inference is that the Noticee did not have authorisation from the actual consigners. In their defence, the Noticee have submitted that they did not commit any altering and tampering in the invoices/details, however, the operation manager of the Noticee did admit in his statement that they and their overseas counterparts knew about the discrepancies. By not disclosing this fact to the department timely, the Noticee only proved their guilt in the matter. Here, I concur with the findings of the IO that 'the mis-match in the details of the consignor & consignee as stated in the ECM vis-a-vis those mentioned on the declaration pasted on the packages, establishes that they have also obtained wrong authorisation from the consignor which is required at the pre-clearance stage.' Hence, I hold that the Noticee have not acted in accordance with the Regulation 12(l)(i) of the CIER, 2010. 28.4. Against the allegation of violation of the Regulation 12(1)(iii) of the CIER 2010, the Noticee have submitted that 'the said issue was....
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.... of the EICI Terminal of New Courier Terminal (NCT), New Delhi. Thus, I hold that the Noticee violated provisions of the Regulation 12(1)(x) of the CIER, 2010." 18. It is apparent from the facts of the case that the appellant had failed to comply with the provisions stipulated in Public Notices dated 7.5.219 and 15.5.2019 inasmuch eight boxes were destined to States other than that seven States in violation of the said Public Notices. We are in agreement with the submission of the learned Authorised Representative that the appellant mis-declared the particulars like consignee-consignor address, value, quantity and description of goods in the House Air Way Bills (HAWB) and that when the address of consignee was given wrongly, the appellant would have been in no position to obtain the requisite authorization from the actual consignor/consignee as mandated in the Regulation 12(1) (i) of the Courier Regulations. The appellant did not disclose/ declare the actual consignor/consignee for the purpose of the clearance of their goods. Therefore, the department was not wrong in alleging that the appellant had mis-declared the details in House Air Way Bills (HAWB), in terms of consignee-cons....