9911796707
TMI Blog2008 (2) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Customs Act, 1962 and imposed a penalty of Rs. 5,00,000/- on them under Section 114(i) ibid. 2. The brief facts of the case are that the appellants through their CHA presented Shipping Bill No. 5541873 dated 27-8-2007 for exportation of a consignment along with the invoice no. 01/07-08 showing value of Rs. 44,94,478.58 (FOB) and claiming DEPB benefit of Rs. 3,14,613.50 under S. No. 457 of Group No. 62, declaring that the consignment consists of 626 cartons of Printed Books for educational reference. The consignment was showing Ministry of Education, P.O. Box No. 1367, Addis Ababa, Ethiopia, as the consignee. 2.1 The routine examination of the consignment was carried out by the Department on sample checking basis. On exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of use in libraries of Bahirdar University, Ethiopia by the students and that these books are not meant for sale. They also stated that the original samples of the books for the purpose of photocopying were provided by the buyer. 2.5 Since the details of the copyright owners were not forthcoming from the appellants despite seeking these details from them, enquiries were made by the Department and on making enquiries in this regard in respect of the sample of the book first drawn i.e. the book titled "Computer Organisation and Architecture" authored by William Stallings, it was learnt that the copyrights for the same in India rest with M/s. Prentice-Hall of India Pvt. Ltd., New Delhi. On making enquiry with M/s. Prentice-Hall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t- (i) for the purpose of prohibition of Exportation/Importation for the purposes mentioned under Section 11(2)(n) and 11(2)(u) of the Customs Act, 1962, there has to be a notification under Section 11(1) ibid. Also, Section 113(d) ibid can be invoked only in cases, where there is a notification issued under Section 11(1) ibid. However, to their knowledge, there is no notification issued under Section 11(1). The Commissioner has also failed to point out any notification under Section 11(1). Unless such a notification is issued, the Customs Officers cannot and do not come into the picture and cannot apply the Customs Act, 1962 and the authority vested thereunder in the allied areas. For this proposition, they p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor remedies though his work may be original one." The appellants maintained that this issue requires adjudication by the competent authority as prescribed under the Copyright Act. According to them, the Commissioner is not an authority to adjudicate the issue whether Copyright exist or subsist in the work. However, he has proceeded to decide that the exporter had violated Section 51 of the Copyright Act without framing issue and recording finding thereon to the effect that there exists any copyright in those copies of book. Without prejudice to the above, they further stated that there can be no confiscation of goods under Section 51 of the Copyright Act, and hence the Customs Act has no application. Section 51 deals with infringement of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in the case of Commissioner of Central Excise, Jaipur v. Pukharaj Moondra reported in 2001 (138) E.L.T. 643 (Tri.-Del.). (iv) They further contended that a Customs Officer has only the power to confiscate goods, which are declared prohibited goods and not adjudicate and declare prohibition. (v) They pointed out that as per the Copyright Act, Section 62 empowers the District Court to adjudicate violation of Section 51 of the Copyright Act and hence the Commissioner has acted without jurisdiction. (vi) Without prejudice to above, they maintained that there is no violation of the Section 51 of the Copyright Act, 1957, as Reprography does not constitute infringement and relied on the book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocopied books, the list of which is annexed to the Show Cause Notice. I find from the list that while writers' names are not mentioned in 12 photocopied books, publishers' names are not mentioned in any of the 23 photocopied books, although titles in respect of all the 23 books have been mentioned. Pending receipt of the clarification from the competent authority in the Copyright Act, the goods should have been detained by the Customs. In the facts and circumstances of the case, I am of the view that it is only proper that the Commissioner makes comprehensive reference to the competent authority in the Copyright Act giving full facts of the case and details of all the 23 photocopied books in question and take appropriate action as per law o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
