1. All the three appeals were heard together and the issue involved is also common even though there are minor differences in the facts of the case. In our opinion, in view of the fact that after hearing both sides in great detail, we came to the conclusion that the matter is required to be remanded on an entirely legal consideration. Hence, a common order can be passed and that too Final Order in respect of all these appeals. Accordingly, the requirement of pre-deposit is waived and all the appeals are taken up together for final decision.
2. All the three appellants are holders of courier registration certificates issued under Regulation 10 of Courier Import and Export (Clearance) Regulations, 1998 (hereinafter referred to as CIECR) to act as authorized courier in Thiruvananthapuram International Airport for clearance of import and export goods under courier mode.
3. Proceedings were initiated on the ground that these courier agencies who are authorized to act as couriers were importing unaccompanied baggages of passengers and goods intended for trade/business in the guise of bona fide gifts, in order to illegitimately avail the benefit of duty free provisions granted for bona fide gifts under Notification No.171/1993-Cus. dated 16.9.1993 read with CIECR.
4. The Bills of Entry were filed in the format prescribed in CIECR and the couriers had subscribed that goods imported under the bills of entry were only bona fide gifts, etc., for personal use of a value not exceeding Rs.10,000/- and did not belong to the category of prohibited or restricted/prohibited goods. According to Regulation 13(a) of CIECR, Couriers were to obtain to an authorization from each of the consignees. However, it is observed in the impugned order that the imports were made in the name of multi consignees who were nonexistent and consignments were split in the name of different consignees and there was no documentary evidence to support that the impugned goods were sent as bona fide gifts.
5. Even though very serious allegations have been made that the persons who are shown as consignees did not exist, the common feature in all these orders is that the details of such persons whose names were shown as consignees and who are found to be nonexistent has not been brought on record. Admittedly, it is not possible to conduct investigations in respect of thousands of consignees in each of the cases before us. Nevertheless, at least a few random samples could have been taken and the same could have been shown to prove that the serious allegations made in the show-cause notice that the consignments were split which were not related to unaccompanied baggage brought into India and sold as imported goods. No evidence has been brought out to show at least in respect of few bills of entries that the consignments were actually split and how they were split and at least if one sample were to be taken to show how the consignment has been split and how the consignments were absent would have made the case of the Department very strong. In the absence specific evidences, at least, on a random sample basis, prima facie we are unable to take the view that what was imported was unaccompanied baggage and it was split, fictitious consignees were shown and goods were sold.
6. A similar issue had come up before us in the case of Indus Logistics vs. CCE vide Misc. Order No.21244/2014 dated 22.5.2014 wherein this Tribunal had taken note of the fact that the courier agents were not required to submit authorization at the time of filing courier bill of entry and Board itself had issued instructions that the courier agencies should get the authorization at the time of delivery of consignment from the consignee and keep the authorization and other documents such as identity of the customer, etc., intact for one year to facilitate audit/inspection by customs. If the courier agent did not produce such authorization to the department when asked for, according to the Regulations, the person filing the bill of entry becomes the importer. This is because the courier agencies are permitted to file bills of entry on behalf of the consignees subject to the condition that they have an authorization either before the import or at least after delivery. It is the claim of the appellants that all the documents were recovered by customs and they had authorization but they were in customs custody and the submissions made by the appellants that they had handed over the documents was not accepted by the Commissioner. In the case of RPS Global Courier Services at least, admittedly, there was no authorization at all.
7. Even if there is no authorization, the question that arises is whether Revenue can demand duty for beyond one year when the Regulation itself requires authorization should be kept only for one year. In our opinion, prima facie, the demand can be limited only for a period of one year prior to issue of show cause notice, if authorization has been obtained by the appellants and the authorization relating to earlier periods could not be produced. Therefore what becomes important is that a proper conclusion as to whether authorizations were available, whether authorizations were obtained, whether authorizations were handed over to customs and there is also a dispute on the issue as to whether the officer who received the authorization and other documents has to be cross-examined or not. Learned counsel submitted that it is the claim of the appellants that they had handed over the authorization copies to the concerned Assistant Commissioner in Customs Airport and he also submitted that all they want is the documents if available to be given to them so that they can defend their case properly and we do not find any arm in this request. Therefore, the Commissioner concerned is requested to ensure that the officers in airport should ascertain whether documents were recovered from these agents and if available, appellant should be provided with copies. If not, we also do not find any harm in permitting cross-examination of the officers whom the appellants claim to have handed over the documents, if requested for.
8. The next question which was not considered and which has made us realize that should have been considered is the fact that customs duty has been calculated on the basis of a uniform rate and bills of entry have not been assessed. For this purpose all the bills of entry have been treated as having been filed for unaccompanied baggage and provisions have been applied. The learned AR relied upon Section 44 of Customs Act, 1962 to submit that Department was right in undertaking the classification on this basis. Further, on going through the Section, we find that it is applicable only for passenger baggages and postal articles. The articles/goods brought through courier are not clearly covered by Section 44 of Customs Act, 1962.
9. Further, as already observed by us earlier, there is no evidence to show that these goods were unaccompanied baggage. If that is the case, then there has to be a finding in respect of each and every bill of entry that it is unaccompanied baggage and the declaration to that effect has to come from the consignor. If it is not unaccompanied baggage, the declaration has to come from consignees. Since we have only considered the stay application, we have to accept the fact that whether the Department has proper evidence to show that these goods were unaccompanied baggages and therefore they have to be assessed as such cannot be answered by us since we are remanding the matter, we would not like to draw any conclusion.
10. We have already held in Indus Logistics case that once an authorization is not produced, the courier agent becomes the importer. However, how the bills of entries should be assessed and whether it can be assessed as imported goods in the normal course or it should be assessed as UB and what is the correct legal position is required to be considered in detail and in this case, there is no such consideration. Under these circumstances, in view of the fact that we have already taken a view that beyond one year if
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the authorization need not be kept, for the earlier period the department cannot reopen the issue unless there is evidence available to show that the authorization was not available and the consignments were fictitious. For the period of one year also, the break-up of amount is not available and what is the correct rate of duty is to be determined. Under these circumstances, it would be appropriate that the matter should be remanded at this stage itself. Accordingly, all the impugned orders are set aside and the matters are remanded for fresh decision on merits. We make it clear that none of our observations should come in the way of the Commissioner and Commissioner should proceed to adjudicate the matter after giving reasonable opportunity to the appellants to present their case and pass orders which would cover all the submissions made by the appellants and pass an order in accordance with law.