Legal principle

In the absence of mens rea, a customs broker or courier agent acting as a mere facilitator of customs transactions cannot be penalized for the omissions or commissions of the importer/exporter, and a venial procedural lapse such as a Regulation 12(ii) contravention attracts only a monetary penalty, not revocation of license or enforcement of bond and bank guarantee.

Court decision

Appeal partially allowed with the impugned order modified: revocation of the courier license and enforcement of the bond and bank guarantee were set aside; the penalty of Rs.50,000 under Section 117 of the Customs Act, 1962 was set aside; violations of Regulations 12(i), (iii), (iv), (v) and (vi) were held unsustainable, with only the Regulation 12(ii) contravention (failing to engage Shri M. Elias as an authorized person to file courier bills of entry) sustained as a venial omission; and the penalty under Regulation 14 was reduced to Rs.25,000.

Facts

M/s Pigeon International, an authorized courier agent licensed by Cochin Customs Commissionerate (extended to Bengaluru Airport), was alleged to have abetted M/s K T Technologies (proprietrix Ms. Kajal Thakur) in importing mobile parts through Bengaluru Airport by mis-declaring value, with courier bills of entry filed on 'trust' of one Shri M. Elias without the importer's authorization. The Commissioner of Customs, by Order-in-Original No.293/2023-24 dated 27.09.2023, revoked the courier license, enforced the bond and bank guarantee, and imposed a penalty of Rs.50,000 each under Regulation 14 of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010 and Section 117 of the Customs Act, 1962. Meanwhile, the importer claimed the seized consignments, paid duty and penalty on 11.01.2022, proceedings against her were closed under Section 28(6)(i) of the Customs Act, and proceedings against the importer and clearing agent were dropped by Order-in-Original No.157/2023-24 dated 10.01.2024.

Key provisions

• Regulation 12(ii), Courier Imports And Exports (Electronic Declaration And Processing) Regulations, 2010 — Obligations of Authorised Courier
• Section 117, Customs Act, 1962 — Penalties for contravention etc not expressly mentioned
• Section 28(6)(i), Customs Act, 1962 — Recovery of duties not levied or not paid or short-levied or short- paid or erroneously refunded
• Section 146, Customs Act, 1962 — Licence for Customs Brokers
• Regulation 14, Courier Imports And Exports (Electronic Declaration And Processing) Regulations, 2010 — Penalty
• Section 135, Customs Act, 1962 — Evasion of duty or prohibitions
• Section 135A, Customs Act, 1962 — Preparation
• Section 140, Customs Act, 1962 — Offences by companies
• Regulation 8, Customs Brokers Licensing Regulations, 2018 — Execution of bond and furnishing of security
• Regulation 19, Customs Brokers Licensing Regulations, 2018 — Appeal