Commissioner Of Customs (Csi Airport) vs Skyline Air Logistics Ltd

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.C/983/11

(Arising out of Order-in-Appeal No.208/Mum/III/2009 dated 08/10/2009 passed by Commissioner of Customs (Appeals), CSI Airport, Mumbai)

For approval and signature:

Honble Mr. P.R. Chandrasekharan, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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Commissioner of Customs (CSI Airport), Mumbai Appellant Vs. Skyline Air Logistics Ltd., Respondent

Appearance: Shri.A.K.Singh, Addl. Comm. (AR) for appellant None for respondent

CORAM: Honble Mr. P.R. Chandrasekharan, Member (Technical)

Date of Hearing : 02/01/2015 Date of Decision : 02/01/2015

ORDER NO

1. The appeal has been filed by the Revenue against Order-in-Appeal No.208/Mum/III/2009 dated 08/10/2009 passed by Commissioner of Customs (Appeals), CSI Airport, Mumbai. Vide the impugned order, the learned lower appellate authority set aside the penalty imposed on the appellant, M/s.Skyline Air Logistics Ltd., the CHA who undertook the import transaction. Aggrieved of the same, the Revenue is before us.

2. The learned Additional Commissioner (AR) appearing for the Revenue submits that in this case, the importer M/s.Tekla India, Navi Mumbai, imported networking equipment vide bill of entry No.45924 dated 14/01/2009 valued at Rs.4,16,782/- without having any IEC Code number. The bill of entry was filed by the CHA on behalf of the importer. Inasmuch as the importer did not have the IEC code, the goods were liable to confiscation under Section 111 (d) and the goods were allowed redemption on payment of fine of Rs.1.00 lakh and a penalty of Rs.25,000/- on the importer. A penalty of Rs.25,000/- was imposed on the CHA also under Section 112 (a). Inasmuch as the bill of entry was filed by the CHA without having any IEC code thereby contravening the provisions of Regulations 13 of the CHALR 2004. In appeal before the lower appellate authority, the penalty was set aside. Inasmuch as the CHA knew that the importer did not have any IEC code he should not have filed the bill of entry and therefore, the CHA has colluded with the importer in the illegal import of goods and therefore, he should have been penalised and the penalty imposed on the CHA by the adjudicating authority is correct in law. Accordingly, he pleads for setting aside the impugned order and restoring the adjudication order passed by the Additional Commissioner of Customs vide order dated 20/03/2009.

3. None represented the respondent.

4. I have carefully gone through the records of the case and submissions made by the Revenue. The lower appellate authority in para 4 of the impugned order has clearly recorded his findings as follows:

The adjudicating authority has found (vide paragraphs # 3.3 & 3.4 of the impugned order) that the appellants had violated the Courier Regulation # 13 and the CHA Regulation # 13, respectively. However, for violation of these regulations, they cannot be penalised under Section 112 (a) (this section being dependent the goods being held liable to confiscation under Section 111). Possibility of penalizing them under Section 117 cannot be discussed at the appellate stage because they were not put on notice for proposing penalty under Section 117.

5. The reasoning given and the conclusion drawn by the lower appellate authority is beyond any challenge. If the respondent CHA had committed any contravention of CHALR, remedies lies in taking action under CHALR and not under the Customs Act. Therefore, I find no reason to interfere with the impugned order. Accordingly, the appeal filed by the Revenue is dismissed.

(Dictated in Court)

(P.R. Chandrasekharan) Member (Technical)

pj

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