2001 (4) TMI 476 - AT - FEMA

Natural justice - Recorded Media - Valuation - Confiscation and redemption fine - E-mail transfers not goods

Summary

Issues Involved:
1. Classification and Misdeclaration of TK-50 Cartridges
2. Valuation of Imported Software Licenses (QL) and Recorded Media (QA)
3. Liability of Import Duty on PAK Information Received via E-mail
4. Penalty and Confiscation under Section 111(m) and Section 112(a)(v) of the Customs Act, 1962

Detailed Analysis:

1. Classification and Misdeclaration of TK-50 Cartridges:
The primary issue was whether the TK-50 cartridges imported by DEIL were misdeclared and if they should be classified under a different heading. The cartridges were declared as "blank unrecorded magnetic tape cartridges" under Chapter Heading 8523. However, the investigation revealed that these cartridges contained recorded information (PAK data), which should have been classified under Heading 8524 as "recorded media." The adjudicator found that the misdeclaration of the description and value of the cartridges warranted confiscation under Section 111(m) of the Customs Act, 1962. The Tribunal upheld the classification of the TK-50 cartridges as recorded media but remanded the case to determine the valuation of the contents therein.

2. Valuation of Imported Software Licenses (QL) and Recorded Media (QA):
The valuation issue centered around whether the value of software licenses (QL) should be added to the value of the recorded media (QA) for customs duty purposes. DEIL argued that QL and QA were separately priced and should be treated independently. However, the adjudicator found that QL and QA were integral parts of the software package, and the value of QL should be considered in the valuation of QA. The Tribunal noted that the correct valuation should follow the Supreme Court's decision in the Associated Cement Companies case, which stated that the value of the contents on recorded media must be considered for customs valuation.

3. Liability of Import Duty on PAK Information Received via E-mail:
The adjudicator had initially imposed duty on PAK information received via E-mail, treating it as an import of recorded media. The Tribunal, however, found that E-mail transfers did not involve the movement of tangible goods across international boundaries and thus could not be classified as "goods" under the Customs Act. The Tribunal set aside the findings regarding the classification and duty liability of PAK information received via E-mail.

4. Penalty and Confiscation under Section 111(m) and Section 112(a)(v) of the Customs Act, 1962:
The adjudicator had imposed penalties on DEIL and its Managing Director under Section 112(a)(v) for their involvement in the misdeclaration and undervaluation of imported goods. The Tribunal noted that the penalties and confiscation were contingent on the final determination of the valuation and classification issues. The case was remanded for re-evaluation of the penalties and confiscation after determining the correct value of the TK-50 cartridges.

Conclusion:
The Tribunal remanded the case to the adjudicating authority to re-determine the value of the TK-50 cartridges following the Supreme Court's guidelines on valuing recorded media. The findings regarding the classification and duty liability of PAK information received via E-mail were set aside. The penalties and confiscation were to be re-evaluated based on the final determination of the valuation and classification issues. The appeal was disposed of accordingly.