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TMI Blog2019 (5) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... fication we do not find any merits in such submissions of the importer. Importer has in the appeal raised lot of procedural safeguards built in the system of assessment and has claimed that, all these should be taken into account while adjudging the offence against them. In our view procedural relaxations and facilitation measures are for facilitating the speedy clearance of the imported goods and are not for the purpose of perpetuating fraud/ misdeclaration. In our view such an argument should be rejected at the very first stage. The appeal filed by the importer is allowed to the extent of reducing redemption fine imposed to ₹ 10,00,000/- - other part upheld - appeal allowed in part. - Appeal No. C/94, 129/2011 - A/85786-85787/2019 - Dated:- 22-1-2019 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri P. Patankar, Consultant for the Appellant-Assessee Ms. Trupti Chavan, Authorised Representative for the Respondent-Revenue ORDER PER: SANJIV SRIVASTAVA These two appeals under consideration have been filed by the revenue and the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 22.10.2010 waived the requirement of Show Cause Notice and asked for personal hearing and requested for release of goods taking a lenient view. 2.6 After affording personal hearing on 30.10.2010, Commissioner adjudicated the matter as per his order referred in para 1, supra. By the said order Commissioner also disposed of the protest made at time of payment of duty. 2.7 Aggrieved by the order of Commissioner both revenue and importer have filed appeal before tribunal 3.1 Revenue has in the appeal filed challenged the order of Commissioner stating that The imported product is wireless data device used for ticketing, billing collection etc and only GPRS communication is possible as mentioned in the manual. From the description of the goods it appears that the goods require a licence from the Wireless Planning Co-ordination (WPC) wing of the Ministry of Communication and Information Technology in view of this requirement under Section 3 of the Indian Wireless Telegraphy Act, 1933 read with section 11 of The Customs Act, 1962, for its import and clearance. The Adjudicating Authority has not examined the issue regarding applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared the goods nor they had any intention to evade payment of duty. In his view the error was a bonafide one and should have been condoned. He lied upon the decisions referred in para 3.1, supra and argued that claiming wrong classification cannot be equated to mis-declaration for holding that goods are liable for confiscation under Section 111(m) and for imposition of redemption fine and penalty. 4.3 Arguing for the revenue learned authorized representative reiterated the grounds taken in the appeal filed by the revenue. She further submitted that the case against the importer is not of mis-classification simplicitor, but a case of misdeclaration. Importer had mis-declared the goods Mobile Phone instead of Data Transfer Device and on the basis of the said misdeclaration claimed classification as Mobile Phones. Since importer had mis declared the goods by describing them as something which they were not the charge of mis-declaration against them is well founded and order of Commissioner confiscating the goods cannot be faulted with. Since the goods have been confiscated, Commissioner has allowed them to be redeemed against redemption fine. For the various acts l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 8525 20 17, 8525 20 19 and 8517 12 20. Against this heading the import policy is that it is allowed free . Now classification is suggested under CTI 8517 70 90. 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) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the Bill of Entry on the basis of the documents relating to importation of the same and not on the basis of physical examination of the goods. When the product catalogue and other documents in relation to the imported goods do not describe the goods as mobile phone, then the act of describing the goods as Mobile Phone on the Bill Of Entry cannot be anything other act of deliberate misdeclaration as have been held by the Commissioner. 5.6 Importer has before the Commissioner and even before us projected the case as to be one of misclassification and has claimed relying on various case laws referred in para 3.1, supra that claim of wrong classification on bill of entry should not invite penal consequences. Since the present case is not of misclassification simplicitor but case of deliberate misdeclaration leading to misclassification we do not find any merits in such submissions of the importer. The case law relied upon would not be applicable in the present facts of case. 5.7 Importer has in the appeal raised lot of procedural safeguards built in the system of assessment and has claimed that, all these should be taken into account while adjudg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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