Custom, Excise & Service Tax Tribunal
) M/S. United Telelinks (Bangalore) Ltd vs Commissioner Of Customs, Patna on 9 January, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. C/70859, 70860/2013
(Arising out of Order-in-Appeal No.100/Pat/Cus/Appeal/2013 dated 18.04.2013 passed by the Commissioner (Appeals) of Customs & Central Excise & Service Tax, Patna)
1) M/s. United Telelinks (Bangalore) Ltd.
2) Shri Ram Bharosi Gupta
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs, Patna
Respondent (s)
Appearance:
Shri Debaditya Banerjee, Advocate, Shri R.N.Bandopadhyay, Consultant, Ms. Debi Parbat, Advocate for the Appellant (s) Sri S.N.Mitra, AC(AR) for the Respondent (s) CORAM:
Honble Shri P.K.Choudhary, Member (Judicial) Date of Hearing:- 09.01.2018 Date of Pronouncement: 09.03.2018 ORDER NO.FO/75065/2018 Per Shri P.K.Choudhary
1. Briefly stated the facts of the case are that on 18.11.2011 SSB Officers intercepted 1573 pieces of Karbonn Mobile Phone sets valued at Rs. 40,63,570.00 along with 34 Bundles of Tissue Papers loaded on Tractor with Trolley at Jogabani and handed over the same to the Customs Officers. On 19.11.2011 Shri Ram Bharosi Gupta, appellant no. 2 filed a claim for the Mobiles stating that since the Consignment was valued more than Rs. 10 Lacs the export documents were pending with the Assistant Commissioner for approval and meanwhile SSB took away the consignment. The appellant no. 2 is the authorized representative of United Telelinks, the appellant no. 1 herein.
A Show Cause Notice dated 03.05.2012 was issued proposing confiscation of the seized goods and to impose penalty on various persons. The Adjudicating authority dropped the proceedings as there was no attempt to export. The Revenue filed an appeal before the Commissioner (Appeals). By the impugned Order the Commissioner (Appeals) confiscated the Karbonn Mobile consignment and ordered to release the same on imposition of redemption fine of 25% of the value of such consignment and also imposed Personal penalty of Rs. 4 Lacs and Rs. 2 Lacs on the appellant no. 1 and 2 respectively. Hence, the appellants filed these appeals.
2. Heard both the sides and perused the records.
3. The Learned Counsel for the appellant submitted that the seizure was made prior to clearance. It is submitted that the Revenue failed to discharge its burden of proof that the seized goods were in the process, to be illegally smuggled into Nepal. The Learned Counsel strongly dismissed the findings of the Adjudicating authority. The appellant claimed that the goods would be exported in terms of the Indo Nepal Treaty. The relevant provision of Indo-Nepal Treaty is reproduced as under:
Article III of the Indo-Nepal Treaty i.e. AGREEMENT OF CO-OPERATION BETWEEN GOVERNMENT OF INDIA AND HIS MAJESTYS GOVERNMENT OF NEPAL TO CONTROL UNAUTHORIZED TRADE w.e.f. 27.10.2009, provides interalia, Subject to such exception as may be mutually agreed upon, each Contracting Party shall prohibit re-exports to the territory of the other Contracting Party of goods imported from third countries without manufacturing activity.
4. The case of the Revenue is that the goods namely Karbonn Mobile were mis-declared to the extent that they are of Indian origin and the Exporter declared himself to be the manufacturer of the goods. But in their statement, it is stated that they have never opened the sealed consignment as imported from Hongkong and the goods were removed for export to Nepal as such. It is alleged in the Show Cause Notice that the goods of Third Country origin are prohibited for export under Indo Nepal Treaty. The Adjudicating authority observed that even if the subject goods are of Third Country Origin, there is no bar to export the same to Nepal under the Export Policy read with Customs Notification No. 208/1977-CUS dated 01.10.1977 as amended. It is further observed by the Adjudicating authority that the Exporter have filed the necessary documents for processing by the Customs by observing all Customs formalities for export and therefore the charges leveled against the appellant are not sustainable.
5. I find that the appellant had not disputed the mis-declaration of the goods. On plain reading of the Indo Nepal Treaty it is apparent that each contracting party shall prohibit re-exports of goods imported from Third Countries without manufacturing activity. I agree with the findings of the Commissioner (Appeals) that the provision of Foreign Trade Policy shall be read with the provisions of Indo Nepal Treaty and in case of any conflict, the provision of Indo Nepal Treaty shall prevail. It is seen from the impugned Order that there was a mis-declaration by the appellant no. 1 regarding the origin of the goods as well as that the good have been manufactured by them, before the Customs authority. In any event, the appellant have not denied the mis-declaration of the goods. Therefore, confiscation of the Mobile consignment and imposition of redemption fine and penalty on the appellant no. 1 is justified. Taking into account the over all facts and circumstances of the case, I do not find any reason to impose penalty on Shri Ram Bharosi Gupta, appellant no. 2 as Authorised Signatory of the appellant no. 1 company.
6. In view of the above discussion, the appeal filed by the Appellant no. 1 is rejected. The penalty imposed on the appellant no. 2 is set aside.
(Pronounced in the court on 09.03.2018) S/d.
(P.K.Choudhary) MEMBER (JUDICIAL)
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Appeal No.C/70859/13