Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Acc & Import), ... vs Reliance Communication Ltd on 8 November, 2012
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/89/11
(Arising out Order-in-Original No. CC-MJ/2010 ADJ ACC dated 30.10.2010 passed by the Commissioner of Customs (ACC & Import), Mumbai)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Customs (ACC & Import), Mumbai
Appellant
Vs.
Reliance Communication Ltd.
Respondent
Appearance:
Shri P.N. Das, Commissioner(AR) for the appellant S/Shri J.H. Motwani, Advocate with Sushant Murthy, Advocate for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 08.11.2012 Date of decision : 08.11.2012 O R D E R No:..
Per: Mr. Ashok Jindal, Member (Judicial) Revenue is in appeal against the impugned order wherein penalty under Section 112 of the Customs Act has been dropped against the respondents.
2. The facts of the case are that intelligence was gathered by a special investigation that M/s. Reliance Communication Ltd. imported Fixed Wireless Terminals (FWT) by classifying wrongly under CTH 85171210 instead of 85177090. It was also found that they were claiming undue benefit of Central Excise notification no. 6/2006 Sr.no. 28 and cess vide notification 69/2004- Sr.no. 1. The respondent had declared the description as FWT for Fixed Wire Terminals and in some bills of entry they had declared as cellular telephone to mislead the department. It was also found that the said goods required licence for clearance as per Section 3 of Indian Wireless Telegraphy Act read with Section 11 of the Customs Act, 1962. Therefore issue of classification was raised.
3. After adjudication, the adjudicating authority held that the goods are liable for confiscation under Section 111(m) of the Customs Act for mis-declaring the said goods and thereby classifying them wrongly and availing wrong notification. But the adjudicating authority did not impose penalty under Section 112 of the Customs Act. Therefore, revenue is in appeal before us.
4. Ld. DR submitted that as the impugned goods require licence, therefore the respondent has violated the provisions of Indian Wireless Telegraphy Act read with Section 11 of the Customs Act. Therefore, they are liable for penalty under Section 112 of the Customs Act.
5. Heard the ld. AR and perused the impugned order.
6. In the impugned order it is a clear cut finding by the adjudicating authority as follows:
In the Import Export Policy 2004-09 against Tariff items 85255010, 85256012, 85256092 etc. the entry Restricted is seen along with the note Not permitted to be imported except against a licence to be issued by the WPC. Wing of the Ministry of Communication and Information Technology. No such entry is seen against tariff Item 85177090 where the impugned goods will be appropriately classifiable. There is suggestion in para 6 and in para 16(b) of the SCN that every equipment which functions using wireless transmission or reception requires such a licence at the time of import in view of the provisions of Section 3 of the Indian Wireless Telegraphy Act, 1933 read with section 11 of the Customs Act. Section 3 of the Indian Wireless Telegraphy Act reads as under:
3. Prohibition of possession of wireless telegraphy apparatus without licence Save as provided by Section 4, no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act. It may be seen that this section deals with prohibition on possession. It is not a section dealing with prohibition on imports. For the customs to take any action for enforcement there should be prohibition on import. No such prohibition is seen in the Indian Wireless Telegraphy Act, 1933. However, the department is calling for WPC licence or no-objection certificates in the case of import of all wireless equipments as a matter of practice on the ground import itself amount to possession. In the case before me, the goods were originally classified under CTI 85252017, 85252019 and 85171220. Against this heading the import policy is that it is allowed free. Now classification is suggested under CTI 85177090. Against this item also import policy is noted as free. So the proposed change in classification cannot bring in a new restriction. Further, the goods are already cleared and therefore goods cannot be confiscated under Section 111(d) of the Customs Act. If there is any violation of the Indian Wireless Telegraphy Act, 1933 for the use of the equipment it is for the Telegraph department to enforce it.
7. Thereafter the adjudicating authority has arrived at the decision that goods are not liable for confiscation under Section 111(d) of the Customs Act. We do agree with the finding of the adjudicating authority as the goods are freely importable as per Import Export policy 2009. Therefore goods are not liable for confiscation under Section 111(d) of the Customs Act, 1962. Therefore, no penalty under Section 112 of the Customs Act is leviable. Accordingly, impugned order qua dropping of penalty under Section 112 of the Customs Act is upheld. Appeal filed by the revenue is dismissed.
(Operative part pronounced in Court) (P.R. Chandrasekharan) (Ashok Jindal) Member (Technical) Member (Judicial) SR 5