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TMI Blog2019 (10) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... are prohibited are attempted to be imported, perusal of Section 111(d) of the Customs Act 1962 shows that the said Section is applicable only if the goods which are imported or attempted to be imported or are brought within Indian Customs Water contrary to any prohibition imposed by this Act or any other law for the time being enforce whereas the Customs in the present case has failed to bring anything on record to show that the mobile phones are prohibited for import - Further, the main ground for confiscating the goods are that the address of the manufacture in the BIS Certificate and in the Bill of Entry are not matched. The manufacturing unit in Shenzhen, China has authorized all its customers to effect all banking transactions perta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Technologies (P) Ltd. imported two models of feature phones, m280 and m380 , batteries, chargers (power adapters) and other mobile accessories vide Bill of entry No. 3715846 dated 23.10.2017 with a declared assessable value of ₹ 36,14,969/-. The Original Authority vide Order No.136/2017 dated 07.12.2017 confiscated the goods under Section 111 (d) of the Customs Act, 1962 on the grounds that the mobile phones imported have been manufactured by a manufacturer other than the one authorized by BIS; and the BIS registration will not apply to the mobile phones imported and the import of mobile phones is without valid BIS registration for their batteries. The Original Authority imposed a penalty of ₹ 10,000/- on the appellant unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the absence of any prohibition imposed by or under the Customs Act, there is no justification in ordering confiscation of the goods imported by the appellant. He also denied that the appellant has violated Para 2.03 of the Foreign Trade Policy or any other law in respect of present import. He also submitted that the imposition of penalty under Section 112 of the Customs Act is wrongly imposed on the appellants. Under Section 112 of the Customs Act, penalty for importation of goods can be imposed only if the goods are liable for confiscation under Section 111(d). He further submitted that with regard to BIS certification, there is no contradiction or inaccuracy in the address of the manufacturer and the finding to the fact that the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Entry was raised in the billing address of the manufacturer in Hong Kong because the payment was made in Hong Kong as the financial transaction in dollars could only be carried out there. Further, the manufacturing unit in Shenzhen, China has authorized all its customers to effect all bank transactions pertaining to the company to Hong Kong as part of usual business practice followed by all traders in India while importing articles from China. He further submitted that this Letter of Delegation as well as BIS certification was produced before the Commissioner (A) but in spite of that the Commissioner (A) has wrongly observed that the appellants have produced no proof to suggest that both the companies are the same. He also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has followed all the laws relating to the import of mobile phones then confiscation of the same under Section 111(d) is not tenable in law. 5. On the other hand, Learned AR defended the impugned order and submitted that the appellant could not satisfy both the authorities regarding contradiction appearing in Bill of Entry as well as in BIS Certificate. He further submitted that Letter of Delegation issued by the Shenzhen Huanuo Internet Technology Co., Ltd in favour of Honkong Internet Network Technology Co. Limited was not produced before both the authorities. 6. After considering the submissions of both the parties and perusal of the material on record, I find that the goods have been confiscated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authorities have not properly examined all the documents produced before them. Further, I note that the appellant has produced the documents pertaining to earlier import by them of the mobile phones and no such objection was raised earlier by the Customs authorities. The respondent has failed to appreciate the business practice followed by all Indian traders while importing articles from China and has unnecessarily detained the goods of the appellant company without any reason. Further, I find that the imposition of penalty on the appellant to the tune of ₹ 10,000/- is also unwarranted in law. Therefore, I set aside the impugned order and direct the Customs authorities to release the goods to the appellant immediately on receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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