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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 ..... n payment Redemption fine of Rs. 15,00,000/- (Rupees Fifteen Lakhs only) under section 125 (1) of the Customs Act, 1962. The importer shall, in addition be liable to pay the applicable duty. (c) I impose a penalty of Rs. 5,00,000/- (Rupees Five Lakhs Only) on the importer under section 112(a) of the Customs Act, 1962." 2.1 Importer had filed Bill of Entry No 768445 dated 12.10. 2010 for clearance of goods declared as "Mobile Phone" and claimed classification under CTH No 85171290, and claimed the benefit of Notification No 06/2006-CE (Sr No 28). The declared value of consignment was Rs. 1,35,69,442/-. 2.2 On examination it was found that the goods were not mobile phones as there was no voice communication through these devices. Importer had vide letter dated 21.10.2010 given technical specifications of the imported goods, wherein it was specifically mentioned that "Features like telephony, VIOP were not available with this device. In view of description of the said goods as "Wireless Data Device" in the manual, the said goods merited classification under CTH 85176290 with effective rate of duty @ 0% (BCD) +10% (CVD) +4% (SAD) leviable. This classification is further supporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and claimed the benefit under Notification No 6/2006-CE and 24/2005-Cus. As such there was no misdeclaration at all but they claimed the classification as per their understanding of the imported equipment. The classification claimed by them was based on their understanding of the imported equipment. Commissioner has not appreciated their bonafides but has viewed it with a predetermined mind that they have deliberately claimed the classification of goods under CTH 8517 in order to evade custom duty. They rely on the following decisions in their support wherein it has been held that claim of wrong classification does not constitute mis declaration so as invite penal action against the importer. i. R G Sales P Ltd [2002 (148) ELT 1076 (T-Kol)] ii. Kuresh Laila [2009 (189) ELT 45 (T-Chennai)] iii. Steel authority of India Limited [2005 (184) ELT 308 (T-Bang)] iv. Lietronics Vijay India Pvt Ltd [2009 (234) ELT 535 (T-Chennai)] Since they had no intention to evade payment of duty by claiming the wrong classification the action as per the impugned order of Commissioner is not justified. 4.1 We have heard Shri P. Patankar, Consultant for the importer and Ms Trupti Chavan, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the impugned order it is a clear cut finding by the adjudicating authority as follows : "In the Import-Export Policy 2004-09 against Tariff items 8525 50 10, 8525 60 12, 8525 60 92, etc. the entry "Restricted" is seen along with the note "Not permitted to be imported except against a licence to be issued by the WPC. Wing of the Ministry of Communication and Information Technology." No such entry is seen against tariff Item 8517 70 90 where the impugned goods will be appropriately classifiable. There is suggestion in para 6 and in para 16(b) of the SCN that every equipment which functions using wireless transmission or reception requires such a licence at the time of import in view of the provisions of Section 3 of the Indian Wireless Telegraphy Act, 1933 read with Section 11 of the Customs Act. Section 3 of the Indian Wireless Telegraphy Act reads as under : "3. Prohibition of possession of wireless telegraphy apparatus without licence. - Save as provided by Section 4, no person shall possess wireless telegraphy apparatus except under and in accordance with a licence issued under this Act." It may be seen that this section deals with prohibition on possession. It is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... device. I have considered the submission that this was a case of bonafide error committed by lower level staff due to lack of knowledge. I do not consider this to be a case of bonafide error because the instrument is much larger (physical dimension 76.2 X 222 X 37 mm and weight 512 grams) than normal cell phone. It has card reading facility and also has "Thermal Printer". Further nowhere in the invoice or catalogue the item is described as "Cell Phone". Even a lower level staff can distinguish it from cell phone. So, I consider it as a case of intentional mis declaration. 8. Since there is a misdeclaration in the description of goods, the said goods are liable for confiscation under Section 111 (M) of the Customs Act, 1962 and the importer is liable for penal action under Section 112(a) ibid. In view of above, I pass the following order." 5.5 Through out importer has been projecting that the error in claiming the classification of the goods was bonafide error. However the same is not supported by the facts on record. Importer had misdeclared the goods as "Mobile Phone" on the Bill of Entry. Such description of goods was not available in the product catalogue or the invoice. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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