Custom, Excise & Service Tax Tribunal
Sahara One Media &Amp; Entertainment ... vs Cc ( Ii ) - (Airport Special Cargo) Mumbai on 12 July, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT No. I
APPEAL No. C/268/2009
(Arising out of Order-in-Appeal No. 225/Mumbai-III/2008 Misc Air
Courier dated 2.12.2008 passed by Commissioner of Customs
(Appeals), Mumbai-III)
Sahara One Media & Entertainment Ltd. Appellant
Vs.
Commissioner of Customs (II), (Air Special Cargo) Respondent
Mumbai Appearance:
Shri Mehul Jivani, C.A., for appellant Shri Manoj Chavan, Superintendent (AR), for respondent CORAM:
Hon'ble Mr. Ramesh Nair, Member (Judicial) Hon'ble Mr. Raju, Member (Technical) Date of Hearing: 10.5.2018 Date of Decision: 12.7.2018 ORDER No. A/86933/2018 Per: Ramesh Nair Brief facts of the case are that the Appellant had imported 10 Beta Tapes of laden Programme through DHL express who is authorized courier for the Appellant. The courier filed Courier Bill of Entry No. 4701 dt. 19.01.2008 by declaring the value of US$ 105 (AV Rs. 3975/-). The CHA M/s Mukadam Freight Systems Pvt. Ltd filed regular Bill of Entry for the
2 C/268/2009 clearance of said consignment. The importer produced copy of licence agreement dt. 01.09.2006 with M/s Televisa, SA, DE and as per which the importer was required to pay licence fee of US$ 1850 being net hourly licence fee. The total licence fee to be paid under the agreement was US $ 1350500/-. The licence fee being paid for the 10 programmes being imported in said BE was US $ 18,500/-. Taking actual freight of Rs. 6423/-, and insurance of Rs. 8273/- @ 1.125% and exchange rate of US $ 1 = Rs. 39.75 the assessable value came to Rs. 7,57,572/-. They were issued show cause notice dated 08.02.2008 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. 286/- as against the licence fee to be remitted for Euro 11,000/- (A.V) Rs. 6,49,182/-. 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 3 C/268/2009 cause notice proposed to enhance the declared value of Rs. 3975/- to Rs. 7,57,572/- 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 (m) and to impose Penalty under section 112 (a) of the Customs Act, 1962.
2. The Appellant filed reply to Show Cause Notice contending that the supplier of Programme were not aware of the intricacies of determination of value of such programmes in India. They have in their invoice only declared the cost of CD without disclosing the facts of payment of licence fee. The Courier M/s DHL accordingly declared the said value in Bill of Entry as he was not aware of the licence amount and agreement of providing licence to the Appellant. That error had happened due to miscommunication between the exporter, courier and the Appellant and there was no intention to evade duty. They themselves instructed the courier to file regular Bill of Entry after including the licence fee. The Adjudicating Authority held that the licence Fees/Royalty were includable 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 to produce, to 4 C/268/2009 the proper officer, the invoice if any relating to the imported goods. The value of the goods were mis- declared to evade duty what so ever the reason for non- declaration may be on the part of the importer. It may be deliberately or on the belief that the same need not to 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. 7,57,572/-. He also ordered confiscation of goods under section 111 (m) with an option to redeem the same on payment of redemption fine of Rs. 2,00,000/-. He also imposed penalty of Rs. 75,000/- 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. 1,10,000/- and also reduced the penalty under section 112 (a) to Rs. 35,000/-. Hence the present appeal by the Appellant.
3. Shri Mehul Jivani, Ld. Chartered Accountant appearing for the appellants submits that as apparent in reply to Show Cause Notice they had directed the M/s. DHL 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 5 C/268/2009 Rs. 1,15,467/-. 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, Superintendent (A.R.) appearing for the revenue supports the impugned order and submits that since mis-declaration of value has been made therefore the impugned order has been rightly passed.
5. Heard both the sides and perused the records of case. We find that the Adjudicating Authority has imposed Redemption Fine and Penalty holding that even if the mis - declaration is unintentional than too the confiscation of goods, duty and Penalty would be imposable. The Appellant has contended that they had given clear instruction to the M/s. DHL that they had no intention to mis-declare the value. We are of the view that it was the responsibility of the Appellant importer to inform the exporter and the courier to mention 6 C/268/2009 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 as the Appellant did not adduce any evidence that they had instructed/ informed courier of licence fee amount to be included in assessable value. We thus hold that the goods has been rightly confiscated. However we find that the duty amount arising due to increase in assessable value is only 1,15,467/-. Thus taking into consideration the same we reduce the redemption fine to Rs. 50,000/- and penalty to Rs. 20,000/-. The impugned order is modified to the above extent. The appeal is partly allowed in the above terms.
(Pronounced in court on 12.7.2018)
(Raju) (Ramesh Nair)
Member (Technical) Member (Judicial)
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