Custom, Excise & Service Tax Tribunal
Brigadier (Rtd) R. Deshpande vs Cc (Acc &Amp; Import) Mumbai on 1 November, 2019
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH
Customs Appeal No. 800 of 2010
(Arising out of Order-in-Original CAO No. CC/MJ/11/2010 ADJ.ACC
dated 30.07.2010 passed by Commissioner of Customs (Import),
Mumbai)
M/s. IndusInd Media & Communications Appellant
Ltd.
"In Centre", 12th Road,
MIDC, Andheri (E),
Mumbai 400 093.
Vs.
Commr. of Customs (ACC & Import), Respondent
Mumbai
Air Cargo Complex,
Sahar, Andheri (E),
Mumbai 400 099.
WITH
Customs Appeal No. 801 of 2010
(Arising out of Order-in-Original CAO No. CC/MJ/11/2010 ADJ.ACC
dated 30.07.2010 passed by Commissioner of Customs (Import),
Mumbai)
Brigadier (Rtd) R. Deshpande Appellant
Vice President Technical,
In Centre, 49/50, 12th Road,
MIDC, Andheri (E),
Mumbai 400 093.
Vs.
Commr. of Customs (ACC & Import), Respondent
Mumbai
Air Cargo Complex,
Sahar, Andheri (E),
Mumbai 400 099.
Appearance:
Shri D.B. Shroff, Advocate, for the Appellant
Shri A.P. Kothari, Authorised Representative for the Respondent
CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Hon'ble Mr. Sanjiv Srivastava, Member (Technical)
FINAL ORDER NO. A/86980-86981/2019
2 C/800,801/2010
Date of Hearing: 01.07.2019
Date of Decision: 01.11.2019
PER: SANJIV SRIVASTAVA
These appeals are directed against the order in
original No CC/MJ/11/2010 ADJ.ACC dated 30.07.2010. By
the impugned order Commissioner held as follows:
30. In view of the findings as detailed above, I pass the
following-
ORDER
(a) The value initially declared by IMCL in Bill of Entry No 643559 dated 24.06.2003 is rejected under Rule 10A of the Customs Valuation (Determination of the Price of Goods) Rules, 1988. The value of all the goods imported under the said B/E taken together is re- determined under Rule 9(c) of the said rules as US$ 301443 CIF and consequently after loading 1% towards landing charges and applying the relevant exchange rate of Rs 47.1 per US$, the assessable value is determined at Rs 1,43,39,925/- for the purpose of section 14 of the Customs Act, 1962.
(b) The classification of all the components imported under the BE No 643559 dated 24.06.03 taken together is determined under Customs Tariff Item 85438999.
(c) The provisional assessment made in respect of BE No 643559 dated 24.06.03 is finalized under Section 18 of the Customs Act, on the basis of revised assessable value and classification as ordered above. Consequently demand for differential duty amounting to Rs 39,64,911/- is confirmed.
(d) The goods imported under BE No 643559 dated 24.06.03, which were seized and released on the basis of Provisional release bond is confiscated under 3 C/800,801/2010 section 111(m) of the Customs Act, 1962. Since the goods are already released to the party they are ordered to pay an amount of Rs 10,00,000/- redemption fine in terms of the bond executed by them.
(e) I impose a penalty of Rs 9,91,228/- on M/s IMCL, under section 112(a) of the Customs Act.
(f) I impose a penalty of Rs 9,91,228/- on M/s IMCL, under section 114AA of the Customs Act.
(g) I impose a penalty of Rs 2,00,000/- on Shri R Deshpande, Vice President Technical, under section 112(a) of the Customs Act.
(h) I order that the differential duty of Rs 54,19,475/-
deposited at the time of provisional release of the goods be appropriated towards the differential duty (Rs 39,64,911?-), fine (Rs 10,00,000/-) and penalty under Section 112(a) of the Customs Act (to the extent of Rs 4,54,564) payable by IMCL. Balance amounts may be recovered by enforcing the bank guarantee executed at the time of provisional release of goods.
2.1 Based on specific intelligence that the appellant would be filing the documents for import of multiplexers, satellite receivers, test and measurement equipments, computers, software and rack wherein the value would be mis-declared to evade payment of customs duty by suppressing the value of software and integration charge, a watch was kept by the SIIB section on the B/E being filed in the name of the appellants.
2.2 Appellants filed a Bill of Entry No 643559 on 24.06.03 submitting six different invoices having No 271105509, 271105510, 271105511, 271105512, 271105513 and 271105514 all dated 20.06.2003 for nineteen items covered the Bill of Entry. Classification of the nineteen items was claimed separately and the total 4 C/800,801/2010 declared CIF value was US$ 2,04,339(Rs 96,24,367/- approx) and the declared assessable value was Rs 1,02,91,463/-. Duty amount of Rs 33,19,771/- was paid vide challan No. 98657879 dated 24.06.2003.
2.3 On examination of the consignment same was found to consist of 8 items as several cards were already assembled into the main units. Though the B/E described the goods individually they were found to be already built into multiplexers, descrambler/receivers/ system/ trackers/ servers etc. These items together constituted "Headend" for Cable TV operations. A Cable Headend is the equipment at a local cable TV Office that originates and communicates cable TV services and cable modem services to subscribers through conditional access mode. Thus all the goods taken together were appropriately classifiable under CTH 85438999 in terms of Chapter Note 5(E) to Chapter 84 read with Section Note 4 to Section XVI.
2.4 Investigation under taken revealed that the goods were not only misdeclared vis a vis description but were misdeclared for value too. On the basis of the investigations undertaken it was viewed that under invoicing was too the extent of US$ 100019 on account of service charges, US$ 12000 on account of freight and insurance charges and US$ 45275 on account of differential price for software. After adding the above to the declared CIF value and 1% towards landing and handling charges the assessable value appeared to be around US$ 365249 equivalent to Rs 1,72,03,243/-leviable to duty under CTH 85438999 at rate BCD 25% + CVD 16% + SAD 4%, and thus total duty payable was assessed at Rs 87,39,248/- and differential duty to be paid was worked out to be Rs 54,19,477/-
2.5 The goods were on request of Appellants assessed provisionally on execution of P D Bond for Rs 1,72,03,242/- supported by Bank Guarantee of Rs 5 C/800,801/2010 86,01,625/-. The goods were released provisionally on filing post bill of entry manually on payment of differential duty of Rs 54,19,475/-.
2.6 After completion of investigations a Show Cause Notice dated 09.11.2009 was issued to the appellants by Commissioner Customs (Import) Air Cargo Complex.
2.7 The show cause notice has been adjudicated by the Commissioner as per the impugned order. Aggrieved by the order appellants have filed this appeal.
3.1 We have heard Shri D B Shroff, Advocate for the Appellant and Shri A P Kothari, Additional Commissioner, Authorized representative for the revenue.
3.2 Arguing for the appellants learned counsel submitted that-
There is no term like "headend" in the Customs Tariff and certainly not in the sub heading 85438999; Show Cause notice or the impugned order fail to specify the clearly defined or individual function that the imported equipment fulfils. Heading 85438999 does not refer to clearly defined function but deals with electrical machines having individual functions. Thus the findings recorded in the para 24.2.2 are erroneous.
Heading 85438999 is residuary entry and it is against the settled principle that if the article is classifiable under specific entry the same could not have been classified in residuary entry. [Dunlop India Ltd 1983 (13) ELT 1566 (SC)] Heading 85438999 is referring to only electrical machines not specified or included elsewhere in chapter 85. It cannot be applied to the goods classifiable under Chapter 84.
In the present case these machines which are electronic and not electrical are specified or included in various headings of chapter 84 and 85. Electronic 6 C/800,801/2010 Machines are different from electrical machines and hence the entire basis of classification is wrong; Though Show Cause notice proposed to classify all the entire consignment of imported goods on the basis of Chapter Note 5(E) read with Section Note 4 to Section XVI, Commissioner has held against applicability of Chapter Note 5(E);
Reliance placed on Section Note 4 is also erroneous, as each of the imported item performs individually specified function and needs to be classified accordingly. In any event the imported goods do not even fulfil the clearly defined function required by CAS as several other pieces of equipment are required to be imported from elsewhere. Equipments imported from Scientific Nagarvision etc., etc has not be classified under Subheading 85438999, but under individual entries.
Headend is just a generic term used to describe any device used in a headend and can be compared to an office where all the components are referred as "office equipment". It is physical location where all the equipments required for receiving and transmitting/ broadcasting TV signals for all channels located. It is admitted by the impugned order and show cause notice that it is equipment in the local cable TV office that originates and communicates cable TV services and cable modem services through CAS.
The goods imported in the consignment cannot alone fulfil the objective as specified by CAS, i.e. of giving customers all possible viewing opportunities, and they had imported certain items from elsewhere; There suppliers namely Tandberg are leading manufacturers of Headend equipments and this term is loosely used like office equipment. Items imported are headend equipments.
7 C/800,801/2010 Even if the imported consignment gets the essential character of headend by application of Section Note 4 and Rule 2(a) of Rules of interpretation, still it cannot be classified under Heading 85438999. The impugned order has proposed to make additions to the declared value as follows:
o Imported software US$ 45,275; on the basis of LOI dated 26.04.2003 and unsigned purchase order dated 29.04.2003 ignoring the subsequent revised offer dated 25.04.2003 as per which the value of software was shown as US$ 7,796.
o Services US$ 199,019, ignoring the fact that the cost of such services was not to be added. o Freight and insurance US$ 12,000, ignoring the fact that the amended purchase order included this amount of freight and insurance. Certain discounts were given to them by the supplier which has not been disputed by the show cause notice. Commissioner has travelled beyond the scope of show cause notice, holding without any basis that discount has to be given proportionately against all the imported items including the software, which has not been done by show cause notice. Thus he held that discount of 33% should be allowed in the total value inclusive of software. Thus when this correction is made in the proposal to the show cause notice, the undervaluation on account of software amounts to US$ 17,513. However after holding so he did not reduced the demand in respect of software from US$ 45,725 to US$ 17,513 but held that the value of software suppressed in the final invoice has been added to the cost of services in the final invoice and since the cost of services is getting added to the assessable value there was no scope for adding the differential price of software separately;
8 C/800,801/2010 The conclusion in the impugned order that the design and product management services and testing and factory acceptance test has to be added to the assessable value as such services were performed abroad is manifestly baseless and without any basis.
Supplier had sent an offer on 04.04.2003 giving the list of items together with the price of each item. The total price for two sets comprising of Tandberg equipment as also the brought out equipment and services was US$890,500 and after giving lump sum discount of US$ 300,000 the final offer price was US$ 590,500;
The LOI prepared on the basis of this offer was subject to approval of Appellants Committee of Director, and was never approved. In meantime Tandberg issued revised offer dated 25.04.2003,segregating the equipments for Delhi and Mumbai. They also distributed the lump sum discount offered in the prices of individual items. This was done by Tandberg on its own without any request of advice from the appellants. The revised offer was approved by the Committee of Directors.
Thus there is no basis for the impugned order holding that the discounts offered should be distributed proportionately amongst all the items shipped.
The conclusion in the impugned order that two components of system integration in the services purchase order were required to be added to the assessable value, as these services were performed abroad, is based on pure assumptions. Tandbergs officials stayed in India for 15 days and carried out the detailed design and layout of the appellants Headend premises and carried out product management services whilst setting up the 9 C/800,801/2010 equipment in the head end. The testing and factory acceptance test had to be carried out in India. It is only when all the equipments are put together then only the same can be tested. Thus the findings that the charges towards these two services need to beaded to the assessable value is contrary to show cause and is without any substance or evidence. The finding in impugned order para 25.2.1 is manifestly incorrect. A perusal of Revised offer and also the signed purchase order shows that there has been reduction in quantities as also increase in the prices of some items and not just the service charges.
Both show cause notice and impugned order record that original purchase order was amended to add freight and insurance charges. Despite recording so impugned order has added the freight and insurance to the assessable value, when they had actually added the same and paid the customs duty. Findings in the para 26.2.5 are beyond the scope of show cause notice.
There has been no misdeclaration. The invoices and purchase order of services was not submitted as these service were performed by Tandberg in India and were not to be included in the assessable value. The imposition of penalties thus not warranted. Since the imports were made prior to 2007, Customs Valuation Rules, 2007 are not applicable. Merely for the reason that Shri Deshpande was functioning as Vice President Technical looking after the technical matters cannot be reason for concluding that he was liable to penalty.
3.3 Arguing for the revenue learned Authorized Representative while reiterating the findings in order submitted that-
10 C/800,801/2010 Appellants had simultaneously imported similar consignments at Air Cargo Complex Delhi and Mumbai;
The on the basis of investigations undertaken at Mumbai show cause notice was issued on identical grounds at Mumbai and Delhi.
The show cause notice issued in Delhi was adjudicated by the Commissioner Air Cargo Complex New Delhi vide his order in original Number 19/2015 dated 29.12.2015.
Tribunal has vide its order reported as Brigadier R Deshpande [2018 (363) ELT 572 (T-Del)] confirmed the order of Commissioner on all counts holding the classification of goods under 85438999 and also held that service charges are includible in the assessable value.
Since matter in respect of the same imports made by the same party at Delhi has been adjudicated by the CESTAT Delhi Bench vide the above order the issue in the present case are not res-integra, and needs to be decided in line with the order of Delhi Bench.
4.1 We have considered the impugned order with the submissions made in appeal and during the course of arguments on appeal.
4.2 We find that the issue is squarely covered by the decision of CESTAT Delhi bench in the appellants own case referred by the learned Authorized Representative. The relevant portions of the said decision are reproduced below:
"The appeal is against the order-in-original number 19/2015, dated 29-12-2015. The appellant imported certain goods at air cargo complex, New Delhi and filed Bill of Entry 2660085, dated 26-6-2003. They declared the goods as Multiplexor Satellite Receivers, test and measurement equipment etc. and attached six invoices 11 C/800,801/2010 covering 19 items imported. They indicated individual classification for the various items under Chapter 84/85 of the Customs Tariff. The bill of entry was assessed as per declaration and applicable customs duty was paid. Subsequently, information was received from SIIB Air Cargo Complex Mumbai, that investigations had been commenced against the appellant for import of similar goods at Bombay. Accordingly, Provisional Assessment was been ordered under section 18 of the Customs Act.
2. The investigation undertaken at the Mumbai revealed as follows :
m) The importer had placed the order at UK for purchase of equipments - one set for Mumbai and another set for Delhi. Each set of equipment, taken together constituted 'Head End' for cable TV operations'. The 'Head End' was an equipment at a local TV office that originates the cable TV services and cable TV modem services to subscriber though Conditional Access System (CAS). All imported equipments taken together contributes towards a clearly refined function i.e. 'Head End' for cable TV operations.
The complete set of equipment together merits classification under Customs Tariff Heading (CTH) 8543 89 99, in the light of section 4 to section XVI. Thus, it appeared that individual classification indicated for 19 imported items amounts to misdeclaration. The search operation carried by SIIB, ACC, Mumbai at the premises of importer further revealed that the importer had also misdeclared the value of the imported consignments at Delhi and Mumbai. They had suppressed the value of embedded software as well as value of services payable to the foreign supplier for carrying out integration of the system prior to shipment and provide complete commission and installation services at the customers premises. Further, it was noticed that the purchase order 12 C/800,801/2010 placed by the importer was revised to show as CIF instead of FOB.
3. In the light of investigation carried out at Mumbai, Customs authorities at Delhi issued Show Cause Notice which resulted in impugned order as follows :
(i) The classification of all imported components were taken together and made under CTH 8543 89 99 of the Customs Tariff Act.
(ii) The value of imported goods was redetermined and finally provisional assessment was finalised resulting in demand of differential duty of Rs. 54,19,475/- along with interest and penalty imposed under various sections of Customs Act on the importer as well as Brigadier Deshpande. Aggrieved by the impugned order, present appeals have been filed.
..........
5. The Learned Counsel for the appellant argued as follows :
(i) The impugned order has been passed without giving opportunity to the importer to file written reply and without personal hearing.
(ii) There is no application for Rule 4 to section XVI in the present case. The terms 'Head End' has been used to refer to the equipments which are used to provide cable TV services with Conditional Access System. It comprises of several equipments, each with its own electronic function, meriting individual classification. The department has wrongly classified the set of equipments under Chapter 85 calling it as 'Head End'
6. The appellant also made an alternate submission on classification of the imported goods if they are deemed to be 'Head End'. It will merit classification under CETH 8525 20 19 as a transmission apparatus and not in 8543 as contended by the department. There is no undervaluation 13 C/800,801/2010 of the imported goods and the department has incorrectly included the amount towards software and post import services by ignoring the revised offer submitted by the foreign supplier and the purchase orders placed by the appellants. They also relied on the following case laws. Multi Screen Media [2015 (322) E.L.T. 421 (S.C.)], SET India Pvt. Ltd. [2003 (152) E.L.T. 190 (Tri-Mum)], and Essar Steel Ltd. [2004 (178) E.L.T. 713 (Tri-Bang.)].
7. The Learned DR justified the impugned order. In his written note dated 11-9-2017, DR emphasised the following :
1. The goods imported were classified under different headings but were found to be complete equipment (i.e. Head End) classified under 8543 89 99. Out of 19 items indicated in the Bill of Entry, physically only 8 items were presented since several cards were already assembled in the main unit.
2. The investigation lead to the recovery of several incriminating documents, which revealed that the importer had not given proper description in the bill of entry, but the goods imported were complete 'Head End' and not parts.
3. 'Service charges' covered by Invoice No. 27110, dated 17-6-2003 amounting to USD 1,00,019 was includible in the assessable value since it pertains to the service charges. Further Brigadier Deshpande, Vice President in his letter dated 26-6-2003 has submitted that the software covered by invoice dated 26-6-2003 was already embedded in the equipment. However, the importer failed to declare the value of the software. The imported equipments are not classifiable under transmission apparatus under CTH 8525 and hence, Head End was classifiable under 8543 where the device cannot be classified anywhere else.
14 C/800,801/2010
4. All the components were not imported in isolation but intended for supply of Head End.
5. Importer fabricated the document by partially suppressing the value of goods with the intention of evading the customs duty. In this regard, the Shri Srinivas Palakodeti, CEO and Brig Deshpande are on record and are liable to penalty. He prayed that impugned order be sustained.
8. After hearing both sides and perusal of record, we find that there are two major issues to be decided.
1. First is the classification of the imported goods - whether 8543 as ordered by the adjudicated authority or 8525 as claimed by the appellant.
2 Second issue is of valuation - whether the value of software already embedded in the equipment as well as service charges are required to be included in the assessable value .
9. First we take the issue of classification. In the relevant bill of entry filed by the appellant, goods covered under six invoices were declared under 19 serial numbers. Individual classification of these equipments were also indicated but during examination of the goods, it was found that only 8 number of goods were found as several cards were already assembled and embedded into the main unit. The investigation by the department revealed that the order placed by the appellant on M/s. Tandbarg, UK supplier is for supply of a suite of equipments which will function together as 'Head end' for cable TV operations. After inter- connecting all the imported equipments these were to be used for transmission of cable TV under the Conditional Access System.
10. The adjudicating authority has taken the view that all the equipments, after inter connection, will contribute towards a common function and hence in terms of Section 15 C/800,801/2010 Note 4 to section XVI the same will be classifiable under 8543. Section Note 4 to Section XVI is reproduced below :
"4. Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or Chapter 85, then the whole falls to be classified in the heading appropriate to that function."
11. From the relevant purchase order, we note that different equipments have been ordered which are meant to be interconnected in such a way as to perform a common clearly defined function. This is the function of 'Head End'. Department has taken a view that this function is to be classified under 8543. But this heading is a residual heading only for machines not included elsewhere. The function performed by 'Head End' is that of transmission of TV channels over cable TV. Such a function will be clearly covered by the Heading 8525 which is reproduced below :
"Transmission apparatus for radio telephony, radiotelegraphy, radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television, cameras; still image video cameras and other video camera recorders; digital cameras."
12. We find similar equipments were held to be classified under 8525 in the case of SET India Pvt. Ltd. v. CC (supra) wherein the Tribunal has observed that "8. These goods therefore should equally be described as transmission incorporating reception apparatus. It is significant to consider similar goods in Heading 85.25 which includes transmission apparatus for radio-telephony, radio-telegraphy. Heading 85.25 also includes transmission 16 C/800,801/2010 apparatus for radio-telephony, radio-telegraphy and radiobroadcasting. The explanatory notes to the heading include any transmission apparatus for radio-telephony or radiotelegraphy, such goods as portable radio-telephones, usually battery operated, of the walkie-talkie as well as transmitters/receivers of telemetric signals and separately presented cordless handsets for line telephone sets. Each of these three items transmit as well as receive wireless signals. Applying the arguments of the departmental representative, these goods must rightly be classified in Heading 85.27 which covers only reception apparatus for radio-telephony, radiotelegraphy or radio-broadcasting. It would be reasonable to say that an apparatus which is capable of receiving and transmitting such signals could equally have been included in a heading either for the reception or for transmission and the fact that such apparatus have been specified in apparatus for transmission, and not apparatus for reception, is hence not of significance.
9. The explanatory notes included in Heading 85.25 television transmitters for industrial use explaining that with these apparatus, the transmission is often by line. They include in Heading 85.28 television receivers for industrial use explaining also with the apparatus, the transmission is often by line. It is not possible to conclude from this as the departmental representative wants us to do, that where transmission is by line, the goods should be classified in Heading 85.28. The real answer is transmission referred to in the Heading 85.25 refers to the transmission made by the transmitter for industrial use and the transmission by line referred to in the reception apparatus of Heading 85.28 refers to the transmission that is received by such apparatus by line. Obviously, if the transmission apparatus transmits the signal by line, the corresponding reception apparatus will necessarily receive the signal that is transmitted, only by line, we are unable 17 C/800,801/2010 to see the relevance of this point to the classification of the goods under consideration."
13. Similar views have also been held in the case of Commissioner Customs v. Multi Screen Media Pvt. Ltd. (supra). By following the above decisions, we are of the view that the imported goods are rightly classifiable under 8525. The differential duty payable is required to be re- quantified and for this purpose the case is required to be remanded.
14. Next we consider the question of valuation. During the course of investigation, the department has recovered the purchase order which was placed by the appellant on the supplier. From this, it is evident that the supply included, apart from supply of equipment, also the necessary software which is to be embedded in the equipment before supply of the same. The PO further includes setting up of equipments in India after receipt thereof in this country. The adjudicating authority has included both the above values for purposes of charging customs duty.
15. The Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 provide the methodology for determination of assessable value in cases where transaction value does not reflect the true value of import transaction. Rule 10 provides for addition of certain cost and services under certain conditions. What is relevant in the present case is Rule 10 which is as under :
(1) In determining the transaction value, there shall be added to the price actually paid or payable for the imported goods -
(a) ... ... ... ...
(b) The value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for 18 C/800,801/2010 use in connection with the production and sale for export of imported goods, to the extent that such value has not been included in the price actually paid or payable, namely :-
(i) materials, components, parts and similar items incorporated in the imported goods;
(ii) tools, dies, moulds and similar items used in the production of the imported goods;
(iii) Materials consumed in the production of the imported goods;
(iv) Engineering, development, art work, design work and plans and sketches undertaken elsewhere than in India and necessary for the production of the imported goods;
(c) ............ (d) ............ (e) ............
Explanation. - Where the royalty, license fee or any other payment for a process, whether patented or otherwise, is includible referred to in clauses (c) and (e), such charges shall be added to the price actually paid or payable for the imported goods, notwithstanding the fact that such goods may be subjected to the said process after importation of such goods.
16. Since the software is already incorporated in the imported goods the value of same is required to be added to the transaction value. Likewise the purchase order also includes the process of installation of equipment after importation. The Explanation as above provides for addition of the charges towards this service also.
17. In view of the above discussions, that addition of the above changes paid by appellant to supplier, to the declared value for purpose of charging duty is upheld.
19 C/800,801/2010
18. In the result, the classification of imported goods are ordered to be done 8525 and not under 8543 as held by the adjudicating authority. We uphold the addition in the assessable value made in the impugned order.
19. In view of the misdeclaration established in respect of valuation, the imported goods will be liable for confiscation under section 111 of the Customs Act and the appellant will also be liable for penalty.
20. The issue is to be remanded to the adjudicating authority only for the purpose of re-computing the differential duty in the light of the above. He will also decide the penalties leviable under various sections in the light of the differential duty which will arise as above, after hearing the appellants."
4.4 The details of items imported at Mumbai and Delhi are detailed in the table below:
Unit and Total FOB Value in US$ Place of Delhi Mumbai Import Bill of 260085/ 26.06.03 643559 / 24.06.03 Entry No/ Date S Description Qty Unit Total Qty Unit Total N o Invoice 271105515/20.06. 271105509/20.06.
No/ date 03 03 1 Multiplexer 3 11742 35226 3 11742 35226 MUX 2C MX 5640 2 Multiplexer 15 3203 48045 15 3203 48045 MUX MX 5640 ASI IN PUT Card 3 MUX MX 3 5338 16014 3 5338 16014 5640 DVBCA Card 20 C/800,801/2010 Total 99285 99582
Invoice 271105516/20.06. 271105510/20.06.
No/ date 03 03
4 TT1220 28 1000 28000 28 1000 28000
IRD CL
QPSK 1/P
ASIG/P2
5 AUD 2 5156 10312 2 5156 10312
TT5010/
BAS
6 1RDETO 2 755 1510 2 755 1510
Descramble
r
7 QPSK 2 755 1510 2 755 1510
Fullband
Demodulat
or
8 Three CAM 5 1940 9800 5 1940 9800
Interfaces
9 TT6120 5 346 1730 5 346 1730
Base with
PID
Filtering
1 DVB ASI/ 5 1814 9070 5 1814 9070
0 M2 Input
OPT
1 QAM Mod 5 130 650 5 130 650
1 (40-860
MHZFCONN
) Table
Handling
DVB PSI/
S1
Total 62582 62582
Invoice 271105517/20.06. 271105511/20.06.No/ date 03 03
1 TT4030 1 3147 3147 1 3147 3147 2 System Tracker 1 DVB AS1/ 1 3147 3147 1 3147 3147 3 M2S INOUT OPTION 1 QAM 1 4154 4154 1 4154 4154 4 Demodulat or input 21 C/800,801/2010 Option Total 10448 10448 Invoice 271105518/20.06. 271105512/20.06.No/ date 03 03
1 CPU TDC 1 5643 5643 1 5643 5643
5 Level 1RM HP Vectra 1 CPU NCC 1 9608 9608 1 9608 9608 6 Level 2RM HP LP 200 Total 15251 15251 Invoice 271105519/20.06. 271105513/20.06.
No/ date 03 03
1 TDC 6 1299.3 7796 6 1299.3 7796
7 Redundanc
y Option
License/
TT6000 &
Routers
License/
TDC S
Invoice 271105520/20.06. 271105514/20.06.
No/ date 03 03
1 Peripheral 14 462.6 6477 14 462.6 6477
8 & Racks
1 3rd Party 1 2500 2500 1 2500 2500
9 Racks
Total 8977 8977
Grand 204339 204339
Total
From the table as above it is evident that exactly identical imports were affected by the appellants from Delhi and Mumbai. Even the quantities, unit value and FOB value as per the six invoices filed in respect of the imports made at Delhi and Mumbai was identical. Hence the issue as decided by the tribunal in case of Delhi imports will squarely cover the imports made at Mumbai.
4.5 Since we find that the issue is squarely covered by the said decision in case of appellant themselves we follow the said decision and remand the matter back to 22 C/800,801/2010 adjudicating authority for re-computation of differential duty and penalties to be imposed in light of re-computed duty liabilities.
5.1 In light of the discussions as above, the impugned order is modified and appeals allowed by way of remand for re-quantification of duty and penalties.
(Order pronounced in the open court on 01.11.2019) (S.K. Mohanty) Member (Judicial) (Sanjiv Srivastava) Member (Technical) tvu