2015 (9) TMI 194 - AT - Customs

Suspension of clearance of goods - Infringement of IPR - contravention of Section 11 of the Customs Act, 1962 read with Notification No. 47/2007-Cus.(NT) dated 8.5.2007 - Held that - DR is not able to explain as to how Revenue is aggrieved by the impugned order of Commissioner (Appeals) which allowed enforcement of bond executed by the right holder for recovering of demurrage charges. The grounds of appeal are identical to the grounds advanced by Revenue in its appeal before the Commissioner (Appeals) and we find that those grounds are adequately dealt with by Commissioner (Appeals). Revenue has no ground to be aggrieved by Commissioner (Appeals ) order which only stated that the recovery of demurrage charges can be made from the right holder by enforcing the bond executed by him. Indeed setting aside the impugned order-in-appeal would meant that the Revenue cannot recover the demurrage charges by enforcing the bond executed by the right holder. In these circumstances, we are of the view that Revenue cannot be said to be aggrieved by the impugned order-in-appeal and consequently has no right to file an appeal there-against under Section 129A of the Customs Act under which only a person aggrieved by the impugned order can file appeal - Decided against Revenue.

Summary

Issues:
1. Alleged violation of Intellectual Property Rights in the import of Samsung dual SIM mobile phones.
2. Suspension of clearance and subsequent release of the imported goods.
3. Recovery of demurrage charges and enforcement of the bond executed by the patent holder.

Analysis:
1. The appeal was filed by Revenue against the order-in-appeal dated 6.11.2009 concerning the import of Samsung dual SIM mobile phones suspected to infringe Intellectual Property Rights. The import was found to potentially contravene Section 11 of the Customs Act, 1962, and relevant rules. The clearance of the goods was suspended, and the patent holder executed a consignment-specific bond. Eventually, the goods were released, and demurrage charges were to be recovered from the patent holder.

2. The Commissioner (Appeals) upheld the order, stating that the bond's conditions required the right holder to bear incidental liabilities, including demurrage, even upon the release of goods. The Commissioner highlighted the absence of a specific mechanism in the rules for recovering such charges but emphasized that the authority to enforce the bond and recover charges rested with the Commissioner of Customs. The decision allowed the enforcement of the bond for demurrage recovery.

3. Revenue challenged the order, questioning the recovery of demurrage charges post-release of goods, arguing that the rules did not provide for such recovery mechanisms. However, the Tribunal found Revenue's grounds insufficient, as the Commissioner (Appeals) had adequately addressed the issue. The Tribunal concluded that Revenue had no valid reason to be aggrieved by the order, as it allowed the recovery of demurrage charges by enforcing the bond executed by the right holder. Therefore, the appeal was dismissed as misconceived under Section 129A of the Customs Act, which requires the appellant to be aggrieved by the impugned order.