TMI Blog2012 (6) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... onally release the goods under Section 110-A of the Customs Act. Writ petition allowed - 956 of 2011 - - - Dated:- 21-7-2011 - J. Chelameswar, C.J. and P.R. Ramachandra Menon, JJ. REPRESENTED BY : Shri George Poonthottam, for the Appellant. Shri John Varghese, Standing Counsel, for the Respondent. [Judgment per : J. Chelameswar, C.J.]. - Aggrieved by the judgment dated 5th July, 2011 in W.P. (C) No. 16503 of 2011, the unsuccessful petitioner preferred the instant appeal. 2. The appellant, one Mr. T.A. Joslin, describes himself to be the proprietor of a business concern carrying on business of imports and exports. He has been duly registered as such and duly allotted an Import Export Code . He imported certain consumer goods, such as cosmetics etc. The goods arrived at the Cochin Port some time in the month of April, 2011. They were de-stuffed on 27-4-2011 at the Container Freight Station, Petta. The said material was examined by the respondents in the first week of May, 2011. But the goods were not cleared for home consumption. The appellant received a communication dated 16-5-2011 from the Commissioner of Customs, Cochin, Special Intelligence and Investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in terms of Section 140(2) of the Trade Marks Act, 1999 and other relevant provision of the Act, ibid, you are hereby directed to produce full and correct details regarding the name and address of the person by whom the goods were consigned to India and the name and address of the person to whom the goods were sent in India. Further any order, documents relating to the goods and authorization or consent from the manufacturer or agent or from the trade mark holder in India or abroad may also be submitted in support of your claim as required under the Trade Marks Act, 1999, so as to ascertain that the proviso relating the trade mark or trade description has not been infringed in any manner as provided in the Trade Marks Act, 1999. 5. You may also submit any order or other documents, evidences or any other material in support of your claim so as to prove that the goods imported under the aforesaid bill of entry are not prohibited under section 11 of the Customs, 1962, read with Notification Number 47/2007-Cus, dated 8-5-2007 read with the CBEC Circular 1/2007-Cus., dated 29-10-2007 issued there under and provisions of the Trade Marks Act, 1999. 6. Replies to this letter along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or direction as this court may deem fit and proper in the interest of justice. 6. The respondents filed a counter affidavit dated 28-6-2011. The substance of the counter affidavit is that apart from the question of infringement of the intellectual property rights (the trade mark), the import in question involved the issues of under invoicing, mis-declaration, bogus imports for third parties by misusing Import Export Code etc. It is also stated in the counter affidavit that the track record of the importer indicated that he habitually declares very low prices to evade duty and therefore, a detailed investigation is required in the matter. The relevant portion of the counter affidavit reads as follows : .... The issue of intellectual property right infringement is one among the many issues involved in this case. Major issues involved are under invoicing, misdeclaration bogus imports for third parties by misusing Import Export Code etc. Regarding intellectual property right infringement, department is bound to initiate proceedings, wherever import of goods with registered trade mark by authorized importers are noticed. On detailed scrutiny three items are found covered under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, the respondents are bound to release the goods detained by them by taking appropriate bond from the appellant along with calling for such security as the respondents deem fit and appropriate in the circumstances and also subject to further conditions regarding the release of the goods in those cases where they believe that some enquiry into the transaction of import is necessary. 10. On the other hand, learned counsel for the respondents Sri. John Varghese argued that it is not the case of the Department that the goods in question are goods, whose import is prohibited under law. He submitted that with reference to three of the items of the imported goods, there is a claim by third parties alleging infringement of their intellectual property right. Such claim is registered in accordance with Rule 4 of the Intellectual Property (Imported Goods) Enforcement Rules, 2007 and once such a claim is registered by virtue of the provisions contained in Rule 6 of the abovementioned Rules, the import of such goods is deemed to be prohibited within the meaning of Section 11 of the Customs Act. The learned counsel further argued that apart from that even with reference to ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the abovementioned rules is made, we do not propose to go further into the details of the scheme or the rules. The rights and obligations of the appellant and the right holders may be determined by the respondents in accordance with law. 12. Coming to the other goods, which are pending clearance by the respondents, the goods are required to be cleared for home consumption as bill of entry for home consumption is already presented by the appellant, importer. Such a clearance is required in accordance with the provisions of the Customs Act and also the Customs Tariffs Act. Under Section 17 of the Customs Act, it is stipulated that once an importer has entered any imported goods under Section 46 of the Act, the same may be examined and tested by the proper officer without undue delay. Under sub-section (2) of Section 17. it is provided that on such examination and testing, the duty, if any, leviable on such goods is required to be assessed. Section 17(1) and 17(2) of the Customs Act reads as follows : 17. Assessment of duty. - (1) After an importer has entered any imported goods under Section 46 or an exporter has entered any export goods under Section 50 the imported goods or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not goods whose import is prohibited by law. 15. Coming to the submission that the appellant is only a name lender for the import of goods by one Anwar, we shall presume for the time being that the appellant is only a name lender, but the actual beneficiary of the import is one Anwar. We called upon learned counsel for the respondents to place the relevant provision which prohibits such an activity on the part of an Import Export Code Number holder. Learned counsel for the respondents categorically made a statement that he is not able to place any such prohibition in law except Section 7 of the Foreign Trade (Development and Regulation) Act, 1992, which reads as follows :- 7. Importer-exporter Code Number. - No person shall make any import or export except under an Importer-exporter Code Number granted by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General . The expression import occurring in the said section means bringing into India of goods as defined under Section 2(e). There is nothing in the law which requires an importer to be either the consume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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