Courier Imports - Penalty imposed u/s 112(a) in adjudication - Issue related to revocation of courier registration adjudicated separately after two months - Commissioner became functus officio in respect of second order - Order marked to CBEC: High Court
By TIOL News Service
NEW DELHI, JUNE 05, 2015: IN the words of High Court, this Writ Petition throws up curious circumstances. The petitioner, which is a courier company, was, amongst others, served a show cause notice dated 15.01.2013. In the said show cause notice the petitioner, apart from the importer was called upon to answer the following:
"..... B. Further, M/s TNT Express India Pvt. Ltd., EICI Terminal, IGI Airport, New Delhi, Shri Rakesh Kumar Gupta S/o Shri Shiv Prasad Gupta R/o S592, School Block Shakarpur, Nehru Enclave, Delhi, Shri Satendra Panwar, Superintendent Customs, IGI Airport, New Delhi and Shri Surender Singh, Inspector Customs, IGI Airport, New Delhi are required to show cause to the Commissioner of Customs (Export), New Customs House, Near I.G.I. Airport, New Delhi, within 30 days of receipt of this notice as to why penalty should not be imposed upon them under section 112(a) of the said Act.
C. Further M/s TNT Express India Pvt. Ltd., EICI Terminal, IGI Airport, New Delhi are also required to show cause to the Commissioner of Customs (Export), New Customs House, Near I.G.I Airport, New Delhi, within 30 days of receipt of this notice as to why their registration should not be revoked in terms of Regulation 13 of Courier Imports and Exports (Electronic Declaration And Processing) Regulations, 2010, for failure to comply with the provisions of there regulations as brought out in Para 10(iv) to Para 10(vi) above. It is not only technical failure, it seems to be intentional failure and the chain of events point to the possibility of smuggling by M/s TNT Express India Pvt. Ltd. Nothing at all has been said, done or suggested which establish the bonafides of the courier company. Therefore, the responsibility of misdeclaration has to be laid at their door ...."
A reply was filed by the Petitioner to the above Show Cause Notice.
The said show cause notice was adjudicated upon by the adjudicating officer, i.e., Commissioner of Customs, vide order dated 18.11.2013. In the said adjudication order, a penalty was imposed in the sum of Rs. 1 lac on the petitioner under Section 112(a) of the Customs Act, 1962. The Petitioner filed an appeal against this order.
Nearly two months later, that is, after adjudicating upon the show cause notice, vide order dated 18.11.2013, the impugned order dated 10.01.2014 was passed by the Commissioner.
The adjudicating officer in the order dated 18.11.2013, while recording that the petitioner had abetted the improper importation of the goods in issue by its acts of omission and commission, and noting thereafter that it was liable for action under Regulation 13 of the 2010 Regulations, did not proceed to impose any penalty, as was possible in terms of the said regulation.
In view of the above, the High Court passed the following order:
The Commissioner of Customs became functus officio upon passing the order of adjudication dated 18.11.2013. It is not disputed by the counsel for respondent no.2 that the said respondent could have filed an appeal against the adjudication order, if it was dissatisfied or aggrieved by the order passed by the Commissioner of Customs. It appears that, respondent no.2, has not preferred an appeal.
Therefore, in the aforesaid circumstances, the impugned order is set aside. This, however, will not come in the way of the respondents to take recourse to an appropriate remedy, if it was otherwise available to it, even at this juncture.
The High Court also marked a copy of the order to the CBEC.
(See 2015-TIOL-1404-HC-DEL-CUS)
