9911796707
TMI Blog2022 (9) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... ckers, T-shirts, briefs, swimming costumes, paper material etc. Some of the imported goods carried brand names in the nature of Samsung, Apple, HTC, Nike, Adidas, Armani, Tomy Hilfiger and Calvin Klein which were registered with the Customs under Intellectual Properties Rights. The Bill of Entry was referred to IPC Cell for verification. Except Nokia and Armani brands, the representatives of other IPR holders joined the proceedings and confirmed that the imported goods of their respective brands were counterfeit goods. They requested for destruction under IPR (Imported Goods) Enforcement Rules, 2007 as the goods were undeclared and infringed IPR of the above owners. A Show Cause Notice dated 12.7.2018 was issued to the importer as well as proposing inter alia to redetermine the value of the goods, confiscate the goods under sec. 111(d), (i) and (m) of the Customs Act, 1962 r/w allied Acts and also for imposing penalties under sec. 112(a) and 114AA of the Act ibid. After due process of law, the original authority passed the following order:- "28(A). For the declared goods as detailed in the Annexure - 1 of SCN:- (i) I order that the declared value of 2,63,509/- for the goods dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs only) on the importer under section 112(a) of the Customs Act, 1962 (ii) I impose a penalty of Rs.15,00,000/- (Rupees fifteen lakhs only) on the importer under sec. 114AA of the Customs Act, 1962 (E) I impose a penalty of Rs.5,00,000/- (Rupees five lakhs only) on M/s. Oceanic Enterprises, the Customs Broker of M/s. Collection Garden imported under sec. 112(a) of the Customs Act, 1962." 2. Against the order passed by the original authority imposing penalty on the appellant under sec. 112(a) of the Customs Act, 1962, the appellant preferred appeal before Commissioner of Customs (Appeals), who vide order impugned herein has rejected the appeal. Hence the appellant is now before the Tribunal. 3. The learned counsel for appellant submitted that the appellant is a Customs Broker holding a valid Customs Broker license. During the course of the business, they filed the subject Bill of Entry on behalf of M/s. Collection Garden wherein the goods were declared as "Metal frame, building material - Accessories, building material - gutter, screw etc.". After examination of the goods, it was found that the consignment contained undeclared goods and also goods which infringed IPR. A pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imported goods based on the documents received by them notwithstanding that the documents were received from a third party. Further the Bill of Entry was registered in the EDI system, examination was carried out in respect of the said goods would prove that the importer was in existence. Merely because their GST registration or other particulars did not match or were non-existence would not establish that the importer themselves were not an existing entity. 5. It is argued by the learned counsel that as separate proceedings were initiated against the appellant under CBLR, 2018, which culminated by imposing penalty of Rs.50,000/- a further penalty under the Customs Act, 1962 cannot be imposed. He prayed that the appeal may be allowed. 6. The learned AR Smt. Sridevi Tritula supported the findings in the impugned order. She submitted that the misdeclaration of goods would not have come to light if the SIIB did not examine the consignment. Further, though goods were declared as "metal frame and building material etc.", only 25 cartons contained goods in the nature of which were declared. The appellant had declared 717 cartons in 140 feet container. However, on examination there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Shri Rama Thenna Thayalan reported in 2021 (12) TMI 47 - Madras High Court and that of this Tribunal in the case of R.S. Arunachalam and Anr. Vs. Commissioner of Customs, Chennai reported in 2022 (3) TMI 287 - CESTAT, Chennai. She prayed that the appeal may be dismissed. 9. Heard both sides. 10. From the facts narrated above, it can be seen t hat although the goods were declared as "metal Frame, building material accessories, building material gutter, screw etc." in the Bill of Entry, on examination it was seen that more than 90% of the goods were undeclared items. Only 25 cartons out of 717 cartons contained the goods described in the Bill of Entry. The total number of cartons also exceeded the declared number of cartons and were found to be 775 cartons. There is misdeclaration and undeclaration of goods. Further, most of the undeclared goods bear the brand of reputed companies and they were found to be counterfeit products. Thus, there is infringement of IPR laws also. Though it can be seen that the appellant who is a Customs Broker has filed the Bill of Entry on the basis of the documents handed over to him by a person representing the importer, in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the Shipping Bill as Let Export. During the investigation, it was established that when Red Sander was substituted for Coco Peat, without appreciating the facts and law properly, the Additional Commissioner had imposed penalty of Rs.10,00,000/-, which was interfered by the Commissioner of Customs and reduced to Rs.3,00,000/-. Whereas, on further appeal by the Department, the same has to be enhanced to Rs.5,00,000/-, which is nothing but non-application of mind and improper application of the provisions of law. **** **** **** ***** ***** 19. From the records and the own admission of the appellant, it is clear that the appellant had not discharged these obligations, which cast on him. It is a case where under the guise of Coco Peats, prohibited goods namely, Red Sanders weighing 10.760 MTs. has been transported. The DRI based on the intelligence gathered, had rescued the goods and found the Cargo was transported based on the Annexure - A containing the signature of the appellant Customs House Agent. Customs House Agent is governed by the Regulations framed by the Government in exercise of the powers conferred under the Customs Act, 1962. Therefore, misdeclaration of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
