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TMI Blog2019 (8) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... model number FB-406, ETA-730/2015/ERLO through their custom broker M/s Express Global Logistics Private Limited. The goods were of Chinese origin and imported from M/s Fitbit International Limited, China. As the goods were wireless in nature, the importer was asked to produce the Equipment Type Approval (ETA) certificates in terms of Notification No. GSR 45(E) dated 28/01/2005 of WPC Wing, Department of Telecom, Ministry of Communications and Information Technology as this product operates in the licence free band width ranges between 2400- 2483.5 MHz. The importer submitted ETA No. 730/ERLO dated 01/12/2015 purportedly issued by Joint Wireless Advisor to the Government of India, Head of Office, Department of Telecommunications, Regional Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01/- were seized. On the request of the appellant, the seized goods were permitted to be shifted to bonded warehouse under Section 49 of the Customs Act, 1962. The importer vide their letter dated 28/09/2017, requested for permission to re-export the seized goods and prayed for waiver of show cause notice. A personal hearing was granted on 28/02/2018 by the Commissioner on the request of the appellant. During the course of personal hearing and vide their letter dated 01/03/2018, the appellant explained to the Commissioner that the responsibility of arranging the ETA was on Fitbit Inc. USA which availed the services of M/s T.P.C., a third party consultant. They pleaded that the third party consultant had provided them the forged ETAs for whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther argued that is fresh ETA certificate in favour of import was not required as long as the goods satisfy the technical specifications mentioned in the ETA. He further argued that no ETA was required in respect of accessories amounting to Rs. 7,11,137/- and hence the impugned order to the extent imposes penalty on accessories of Fitbit devices is not sustainable. Further argued that the appellant is in no way responsible or involved with the procurement of fake ETAs and as soon as the appellant came to know that the ETAs procured by the consultant of Fitbit Inc. USA were not genuine, they immediately requested Fitbit USA to obtain fresh ETAs which were duly obtained and submitted by the appellant before the Department and the learned Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Trade Policy 2015-2020 para 2.03, all the domestic Laws/ Rules/ Orders/ Regulations/ Technical specifications/ environmental / safety and health norms applicable to domestically produced goods shall apply, mutatis mutandis, to imports unless specifically exempt. It is argued that the corrigendum was validly issued as the Adjudicating Authority had only rectified the unintended mistake by imposing penalty under Section 114AA of the Customs Act, as the appellants could not have escaped wrath of penal action under Section 114AA having produced fake/forged ETA. He relied upon the case law in Sanjay Bahadur versus Commissioner of Central Excise, Belapur reported in 2009(240) E.L.T. 282 (Tri-Mumbai). 5. Having heard both sides and on pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Export), Chennai-I versus Bansal Industries reported in 2007(207) E.L.T. 346 (Mad.) has upheld an imposition of penalty under Section 112 of the Customs Act without involving any mens-rea in the case by placing reliance upon the Hon'ble Apex Court decision in Chairman, SEBI versus Shriram Mutual Fund [(2006) 5 SCC 361] where it has been held as under :- "In our opinion, mens-rea is not an essential ingredient for contravention of the provisions of a civil act. In our view, the penalty is attracted as soon as contravention of the statutory obligations as contemplated by the Act is established and, therefore, the intention of the parties committing such violation becomes immaterial. In other words, the breach of a civil obligation which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise, Belapur reported in 2009(240) E.L.T. 282 (Tri-Mumbai) is distinguishable because in that case penalty under Section 11AC of the Central Excise Act was imposed but only the quantum was not mentioned. As penalty under Section 11AC is mandatory penalty such mistake could be rectified. Further, penalty was proposed on the director in the show cause notice but no order was passed in the original order with respect to penalty either for vacating or imposing the penalty. Thus mistake was apparent on record which was rectified by the corrigendum. In this case no show cause having been issued and no penalty in the impugned original order been imposed, we cannot consider that the original order envisaged any imposition of penalty under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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