By TIOL News Service

MUMBAI, OCT 12, 2015: THE appellant, a courier company, on behalf of M/s. Precision Enterprises filed form-V Bill of Entry for the import of secondhand SO2 Analyser for repairs on 13.11.2008.

It is alleged against the courier that they have failed to inform the Customs authorities that the goods are secondhand and, accordingly, they are guilty of non-performance of duty for non-declaration and accordingly penalty of Rs.25000/- has been imposed u/s 112(a) of the Customs Act.

Before the Commissioner(A), a ground was raised that the goods in question were secondhand capital goods and are not restricted under para 2.17 of FTP 2004-09 and are not liable for confiscation and accordingly penalty could not have been imposed u/s 112(a). It was further contented that the appellant is only a courier service agency, and as such is an agent of the importer and hence they are not liable for any penalty. It is also contended that there is no case for mis-declaration as it is seen from the invoice of the exporter and also from the invoice of the appellant courier, that the goods are imported for repair and for re-import in the country of export. More importantly, it is not in dispute that M/s. Precision Enterprises is engaged in the business of repairing old and used machines.

The Commissioner (Appeals) did not buy this argument and dismissed the appeal.

Being aggrieved, the courier company filed an appeal before the Tribunal.

The CESTAT held -

"…This Tribunal finds no case of mis-declaration by the courier, as it is evident on the face of the document the invoice and courier shipment airway bill that the import in question is made for repairs and thereafter for sending back. These documents are annexed to the bill of entry at the time of clearance. As such the authorities below are in error in holding that a case of mis-declaration and suppression is made out against the appellant courier agency. Further SO2 Analyser is a capital goods under para 9.12 of FTP, which includes ‘instrument for testing, research, quality and pollution control'. Thus the appeal is allowed. Courier agency is entitled to refund of pre-deposit made during the investigation or pending of proceedings."

(See 2015-TIOL-2174-CESTAT-MUM)