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Sahara One Media & Entertainment Ltd V/S Commissioner of Customs (II), (Air Special Cargo), Mumbai

    Appeal No. C/269/2009 (Arising out of Order-in-Appeal No. 224/Mumbai-III/2008 Misc. Air Courier dated 2.12.2008 passed by Commissioner of Customs (Appeals), Mumbai-III) and Order No. A/86934/2018

    Decided On, 12 July 2018

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai

    By, MEMBER

    For Petitioner: Mehul Jivani, C.A And For Respondents: Manoj Chavan, Superintendent (AR)

Judgment Text

1. Brief facts of the case are that the Appellant had imported 2 Beta Tapes of laden Programme through DHL express who is authorized courier for the Appellant. The courier filed Courier Bill of Entry No. 45008 dt. 27.01.2008 by declaring the value of US$ 48. The CHA M/s. Mukadam Freight Systems Pvt. Ltd. filed regular Bill of Entry for the clearance of said consignment. The importer produced copy of licence agreement dt. 13.08.2007 with M/s. CPT Holdings Inc. The total licence fee to be paid for 18 Titles was US$ 1,95,300/- i.e. US $ 10850/- per Title. Accordingly the assessable value was calculated to be Rs. 4,40,501/-. They were issued show cause notice dated 08.02.2008 alleging that the declared value had no relation to the value being remitted for import. The value being remitted for the import that the licence fee is liable to be included in the assessable value under Rule 10 (c) of Customs Valuation (Determination of value of imported goods), Rules 2007. The importer has declared value of Rs. 1908/- as against the licence fee to be remitted for US $ 10,850/- (A.V) Rs. 4,40,501/-. During filing of Bill of Entry the Courier had signed declaration as to the correctness of declared value, and they have been authorised by the importer to clear the same. The said fact of mis-declaration could be known during examination of contract copy and the importer have mis-declared the value to evade the customs duty. For the said act of mis-declaration of value, the goods are liable to confiscation under Section 111 (m) and the importer is liable for penalty under section 112 (a) of the Customs Act, 1962. The show cause notice proposed to enhance the declared value of Rs. 1908/- to Rs. 4,40,501/- in terms of Rule 10(1)(c) of Customs Valuation (Determination of Imported Goods) Rules, 2007. It was also proposed to confiscate the goods under section 111 and to impose Penalty under section 112(a) of the Customs Act, 1962.

2. The Appellant filed reply to the Show Cause Notice contending that they had filed regular Bill of Entry through their CHA declaring correct value and has established their bonafide by making good the due payment to Govt. and hence penalty not be imposed. The Adjudicating Authority held that the licence Fess/Royalty were includible in assessable value in terms of provision of Rule 10(1)(c) of Customs Valuation Rules, 2007. The importer has to make declaration as to the truth of the contents of Bill of Entry and in support of such declaration produced, to the proper officer, the invoice if any relating to the imported goods. The CBE was filed by Courier for Rs. 1908/-. Subsequently the CHA filed regular Bill of Entry after including licence value. The licence agreement and the amount to be remitted were in existence even prior to importation. The authorised courier on behalf of importer has made the declaration as to the truth of the contents of the courier bill of entry. Because of the examination of documents related to payment and the licence agreement, the fact of mis-declaration could be found out. The importer and courier have deliberately mis-declared the value in Bill of Entry to evade duty. The value was mis-declared by the courier to evade duty whatsoever the reason for non declaration may be on the part of importer. It may be deliberately or on the belief that the same need not be done. He has held that the breach of the provision would attract penalty even if there is guilty intention or not. The Adjudicating Authority thus rejected the declared value and enhanced the same to Rs. 4,40,501/-. He also ordered confiscation of goods under section 111 (m) with an option to redeem the same on payment of redemption fine of Rs. 1,00,000/-. He also imposed penalty of Rs. 40,000/- under Section 112 (a) of the Customs Act upon the Appellant. The Appellant filed appeal before Commissioner (Appeals) who upheld the impugned order. He reduced the Redemption Fine to Rs. 50,000/- and also reduced the penalty under section 112 (a) to Rs. 20,000/-. Hence the present appeal by the Appellant.

3. Shri Mehul Jivani, Ld. Chartered Accountant appearing for the appellant submits that as apparent in reply to Show Cause Notice, they had directed the CHA to file regular Bill of Entry. They had no intention to evade duty. He submits that the duty enhancement due to change in assessable value is only Rs. 67,612/-. He relies upon the judgment of Tribunal in the case of DHL Worldwide Express : 2005 (183) ELT 293) (Tri.-Del.), Bosch Chassis Esystems India Ltd : 2015 (325) E.L.T. 372) (Tri.- Del), Rational Art & Press Pvt. Ltd. (2007 (215) E.L.T. 522) (Tri.-Mum), K.H. Arind (2006 (205) E.L.T. 674) (Tri.-Chennai), Photophone Ltd. (1994 (73) E.L.T. 157) (Tri) to submit that since the imported goods are for their own use the Redemption Fine and penalty be reduced.

4. Shri Manoj Chavan, Ld. Superintendent (A.R.) appearing for the revenue supports the impugned order and submits that since mis-declaration of value has been made, the impugned order has been rightly passed.

5. Heard both the sides and perused the case records. We are of the view that the Appellant has not adduced any evidence that the courier was not authorised by them to file Bill of Entry or they had intimated him to file Bill of Entry after including the licence fee. We are of the view that it was the responsibility of t

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he Appellant importer to inform the exporter and the courier to mention correct details in the documents. Further the Bill of Entry could not have been filed without intimating the Appellant. The charges of mis-declaration are thus sustainable and the goods has been rightly confiscated. However we find that the duty amount arising due to increase in assessable value is only 67,612/-. Thus taking into consideration the same we reduce the redemption fine to Rs. 35,000/- and penalty to Rs. 15,000/-. The impugned order is modified to the above extent. The appeal is partly allowed in the above terms.