Case Law Details
Callmate India Pvt Ltd Vs Commissioner of Customs (CESTAT Delhi)
CESTAT finds that there is no case of deliberate mis-declaration made out on the part of the Appellant importer. The Bill of Entry had been filed as per the packing list and Bill of Lading. Further, the Shipper/Exporter have accepted their mistake, there being error at the time of packing the goods at their end. This cogent explanation has not been found to be untrue. I, further take note that the Appellant had already been suffered financial loss at the end paid for the consignment to the Shipper.
In view of above CESTAT set aside the penalty imposed under Section 112a of the Customs Act.
FULL TEXT OF THE CESTAT DELHI ORDER
The Appellant is in importer/trader having IEC number. They file Bill of Entry No. 2986717 dated 17/03/2011 through their CHA Mr. Pradeep Kumar Parashar declaring the goods to be conversion for telecommunication, travel charger for mobile phone-unbranded and universal pouches for mobile phone (unbranded). The Bill of Entry was assessed and marked for examination by SIIB on first check basis. The goods were initially examined on 28/03/2011 and thereafter the final examination on 04/04/2011. On examination, it was found that there is mismatch with regard to the quantity and also contained branded goods being Nokia Chargers. Some undeclared travel chargers, AC adaptors were also found. The Appellant submitted before the Customs that it was their first order through M/s Pama and Company Ltd. UK but, due to some mistake at the end of the exporter/shipper, they also imported some another goods which are not as per the purchase order. In support of their contention, they also submitted letter dated 19/04/2011 received from Pama and Company UK, wherein the Shipper admitted its mistake that they have mistakenly packed another goods also which are not as per the purchase order.
2. The statement of the Manager of the Appellant Mr. Sanjay Khurana, on being called on 28/04/2011 wherein he inter alia stated that they have been trading in mobile accessories for the last several years, mainly importing from China, under their own brand name-Callmate, wireless gold alfa. The order with Pama & Co. Ltd, UK was placed for the first time, being order no. 248007 dated 17/12/2010. The Shipper-Pama & Company mistakenly packed some other goods also, the Appellant have already remitted the payment in advance as per their purchase order. Accordingly, in the circumstances, the Appellant admitted the mistake due to inadvertence of the part of the Shipper and requested for lenient view and also waived his right to show cause notice.
3. As Nokia Mobile registered with the Custom department with respect to IPR that department informed them, and after examination the representative of Nokia stated that the Nokia brand goods imported by Appellant valued at Rs. 37,500/- are counterfeit and also furnished bound and banned guarantee.
4. It appeared to Revenue that it is a case of mismatch both as regards the description and quantity, and thus the value declared by the importer in the Bill of Entry of Rs. 3.5 lakhs cannot be accepted and accordingly the case goods are required to be re-valued on the basis of market survey or on the basis of similar/identical goods being imported by other importers. Revenue issued show-cause notice dated 03/06/2011 require to show cause, why not the declared value rejected and the goods be re-valued in terms of Rule 12 of the valuation Rule under Section 14 and the value be re-determined at Rs. 7,38,970/- and Customs duty be remanded at Rs. 1,48,095/- and as to why not the goods be confiscated, further proposed to confiscate the Nokia brand mobile chargers valued at Rs. 37,500/- under Section 111d of the Customs Act. Further, penalty was also proposed.
5. The Appellant filed reply to show-cause notice on 28/06/2011 denying the charges and reiterating that they have filed the Bill of Entry as per the import documents being Bill of Lading etc. and the mismatch is attributive to the Shipper whereas also packed another goods inadvertently, further reiterated that the Shipper has admitted the mistake. Further, Appellant also did not have any knowledge about the branded Nokia being fake.
6. That the Appellant- Importer by their letter dated 25/06/2012 and 27/08/2012 submitted that they have calculated the cost of the detention and demurrage charges and custom duty on the goods lying under seizure and the same is much more than the invoice value. Hence, they are not in a position to clear the goods and accordingly they surrender/abandon the goods.
7. Thereafter, the Additional Commissioner adjudicated the show-cause notice detecting the transaction value and re-valuing the goods at Rs. 7,38,970/. It was further ordered confiscation of the goods valued at Rs. 7,10,470/- (other than Nokia charges) liable to confiscation under Section 111d (i) and (m) of the Act. Further taking into notice that the goods have been abandoned the same was accepted and no redemption was given under Section 125 of the Act. Further, absolute confiscation of Nokia brand mobile charges valued at Rs. 37,500/- was ordered under Section 111d of the Act. Further, penalty of Rs. 4 lakhs was imposed under Section 112a of the Customs Act.
8. Being aggrieved, the Appellant is in the Appeal before the Commissioner (Appeals), the ground that under the facts and circumstances, no penalty was imposable under Section 112a of the Act, as the Appellant have abandoned the goods in view of the mistaken packing committed by the Shipper.
9. Under the facts and circumstances, there was no deliberate mis-declaration on the part of the Appellant-importer. Accordingly, he prayed for setting aside the penalty imposed. The Commissioner (Appeals) was pleased to reject the Appeal. Being aggrieved, the Appellant is before this Tribunal.
10. Learned Counsel for the Appellant Mr. Akshay Anand inter alia urges that it is an admitted fact that the Shipper/Exporter M/s Pama and Company UK, inadvertently packed some other goods including branded Nokia Mobiles which were not ordered by the Appellant-importer. Appellant had also given a cogent explanation supported by letter of the Shipper which has not been found cogent. In the facts and circumstances, the Appellant had requested for a lenient view as early as on 20/04/2011. However, Revenue has delayed the matter and revalued the goods at more than double the declared value and further due to accumulation on detention and demurrage charges, the Appellant had finally abandoned the goods which has been accepted by the Revenue. Thus, the Appellant have already suffered loss as they have made payment in advance for the consignment to the Shipper though circumstances, it is submitted that there being no deliberate mis-declaration on the part of the Appellant prays for setting aside the penalty imposed under Section 112a of the Act.
11. Learned Authorised Representative relies on the impugned order.
12. Having considered rival contentions, I find that there is no case of deliberate mis-declaration made out on the part of the Appellant importer. The Bill of Entry had been filed as per the packing list and Bill of Lading. Further, the Shipper/Exporter have accepted their mistake, there being error at the time of packing the goods at their end. This cogent explanation has not been found to be untrue. I, further take note that the Appellant had already been suffered financial loss at the end paid for the consignment to the Shipper.
13. In view of my findings, I set aside the penalty imposed under Section 112a of the Act. The Appeal is allowed, the Appellant shall be entitled to consequential benefit, in accordance with law.
(pronounced on 01.04.2022)
