2016 (9) TMI 1089 - HC - Customs

Valuation - demand of customs duty on license fee paid to the overseas licensor - payment of service tax on license fee - reverse charge mechanism - import of set top boxes - multi-channel down-linking - distribution and transmission of technology - HITS operator - consignments of set top boxes stored in customs bonded warehouse - clearance of set top boxes for home consumption avoiding appropriate payments of customs duty and giving wrong declarations - seizure - confiscation under Section 111(m) of the Customs Act, 1962 - provisional release of goods on furnishing bank guarantee - Held that - it is only on the investigation being concluded and appropriate steps taken, that the authorities can issue a show cause notice and demanding amounts now styled as a Customs Duty on the licence fee. The petitioners are relying on the principle that what is really embedded and as claimed, are not goods but it is intellectual property services. They are relying on the payment of Service Tax and in that regard, the DRI could not have proceeded on the footing and in the facts and circumstances of the present case that there is a definite evasion. It is their duty to bring such cases of alleged evasion to the notice of the customs, which they have after the outcome of the investigation, whenever they are concluded. It is thereafter for the Commissioner of the Customs and all authorities under the Customs Act to take appropriate steps and measures. Provisional release of goods permitted - petitioners to furnish a Bond for securing differential duty payable, on the licence fees and Special Additional Duty so as to secure the redetermined value - petitioners to furnish a Bank Guarantee to the extent of 25 %, to secure the amount of the alleged differential duty, on licence fees - petition disposed off - decided partly in favor of petitioner.

Issues Involved:
1. Payment of Customs Duty on the license fee for set-top boxes.
2. Seizure of goods and legality of seizure orders.
3. Conditions for provisional release of seized goods.
4. Allegations of mis-declaration and evasion of Customs Duty.

Detailed Analysis:

1. Payment of Customs Duty on the License Fee for Set-Top Boxes:
The petitioners sought a declaration that no Customs Duty is payable on the license fee paid to the overseas licensor in connection with the import of set-top boxes and that they have been rightly paying service tax on the said license fee. The petitioners argued that they have been complying with all applicable customs and service tax regulations, and at no point before March 2016 was any objection raised by the respondents regarding the payment of Customs Duty on the license fee.

2. Seizure of Goods and Legality of Seizure Orders:
The petitioners challenged the seizure of their goods under panchanamas dated 4th and 9th August 2016, arguing that the seizure was illegal and unreasonable. They contended that the seizure was based on the false ground that the goods were liable for confiscation under Section 111(m) of the Customs Act, 1962, due to alleged mis-declaration and evasion of Customs Duty. The petitioners highlighted that the seizure was disproportionate, as the disputed additional Customs Duty amounted to only ?53,38,212, whereas goods worth ?52,79,52,015 were seized.

3. Conditions for Provisional Release of Seized Goods:
The petitioners argued that the conditions imposed for the provisional release of the seized set-top boxes were arbitrary, unreasonable, and unfair. Specifically, they contested the requirement to furnish a bank guarantee of 25% of the re-determined value of ?54.55 crores, which amounted to ?13.63 crores, despite the differential duty claimed being only ?54 lakhs. The petitioners were willing to pay the full duty on the re-determined value of the set-top boxes at the time of clearance for home consumption but opposed the stringent conditions for provisional release.

4. Allegations of Mis-Declaration and Evasion of Customs Duty:
The respondents, represented by Mr. Jetly, argued that the petitioners had indulged in mis-declaration of value by not including the license fee paid to a third party for the CAS software in the transaction value of the imported set-top boxes. They contended that the license fee should be added to the transaction value in terms of Rule 10(1)(c) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. The respondents also alleged that the petitioners wrongfully claimed exemption from payment of Special Additional Duty and that there was prima facie evidence of evasion of Customs Duty.

Judgment:

Provisional Release Conditions Modified:
The court modified the conditions for the provisional release of the seized goods. The petitioners were directed to furnish a bond to secure the differential duty payable on the license fees and Special Additional Duty, securing the sum of ?54 crores. Additionally, the petitioners were required to furnish a bank guarantee to the extent of 25% to secure the amount of the alleged differential duty on license fees. The court quashed the condition of furnishing a bank guarantee of 25% to secure the re-determined value, deeming it unjustified.

Conclusion:
The court disposed of the writ petitions by modifying the provisional release order to ensure the petitioners' compliance with customs regulations while addressing the concerns of the Directorate of Revenue Intelligence. The court emphasized that the final determination of the issues on merits would be made by the customs authorities after the conclusion of the investigation.

← Previous Next →