TMI Blog2007 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... ills of Entry. The EXIM Policy relevant to the period of subject imports had stipulated that satellite communication equipments (like DSNG equipment) classifiable under CTH 8525 20 92 could be imported only against an import licence issued by the WPC (Wireless Planning Coordination) wing of the Department of Telecommunications under the Ministry of Communications and Information Technology (hereinafter referred to as WPC licence). A Separate licence from the same authority was required for establishing and operating the equipment. For obtaining this licence (called operating licence) the applicant was required to satisfy the licensing authority that the equipment conformed to the technical parameters such as frequency, emission, bandwidth etc. laid down by the said authority. Under the EPCG scheme, the appellant-company was required to fulfil their export obligation in relation to the imported capital goods within a period of 8 years from the date of issue of EPCG licence. Within this period, export obligation should be discharged in the following proportions Block of 1st and 2nd years - Nil Block of 3rd and 4th years - 15% Block of 5th and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Broadcasting to use DSNG equipment for getting live feeds from the States of Tamilnadu, Andhra Pradesh, Kerala and Karnataka to be downlinked at their earth station in Chennai for permitted TV channels. This permission was seen to have been communicated in the Ministry's letter dated 5- 8-2003. SIIB did not accept this permission as substitute for WPC licence. Further, they found that the appellant-company had applied for such licence on 16-10- 2003 only and were yet to receive the licence. Statements were recorded from Shri M. Raajhendran, Managing Director of the company (appellant in Appeal No. C/294/2005), Shri M. Raveendran, Director of the Company (appellant in Appeal No. C/295/2005) and Shri E. Kirubakaran, Senior Engineer - Maintenance of the Company, under Section 108 of the Customs Act. Any WPC licence or installation certificate was not produced by the appellants even during the course of investigations. 4. On the basis of investigative results, the Department issued show- cause notice dated 8-2-2005 to the appellant-company, its Managing Director and 3 other Directors viz. S/Shri M. Raveendran, M. Rajarathinam (appellant in Appeal No. C/296/2005) and M. Raghuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as applicable shall be paid within 10 days from the date of receipt of this order, failing which the bank guarantee and bond executed. in their behalf is enforceable; (d) I order that the goods imported vide 10 Bills of Entry valued at Rs. 1,40,44,270/- is held liable for confiscation under Sec. 111 (o) of the Customs Act, 1962. However, I impose a redemption fine of Rs. 70,00,000/- (Rupees Seventy lakhs only) in lieu of confiscation; (e) I impose a penalty of Rs. 1,90,00,000/- (Rupees One crore ninety lakhs only) on M/s. Raj Television Network Ltd. under Sec. 112(a) of the Customs Act, 1962; (f) I impose a penalty of Rs. 50,00,000/- (Rupees Fifty lakhs only) on Shri M. Raajhenndran, Managing Director of M/s. Raj Television Network Ltd. under Sec. 112(a) of the Customs Act, 1962; (g) I impose a penalty of Rs. 10,00,000/- (Rupees Ten lakhs only) on Shri M. Raveendran, Director of M/s. Raj Television Network Ltd. under Sec. 112(a) of the Customs Act, 1962; (h) I impose a penalty of Rs. 10,00,000/- (Rupees Ten lakhs only) on Shri M. Rajarathinam, Director of M/s. Raj Television Network Ltd. under Sec. 112(a) of the Customs Act, 1962; and (i) I impose a penalty of Rs. 50, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, learned Counsel submitted that there was no mens rea in misclassification, unlike in misdeclaration. He relied on the Karnataka High Court's judgment in Commissioner of Customs, Bangalore v .A. Mahesh Raj - 2006 (195) E.L.T. 261 (Kar.) to bring out the distinction between misclassification and misdeclaration. In respect of the DSNG equipment, learned counsel further pointed out that WPC licence had since been produced before the Commissioner and provisional release of the equipment obtained by the appellants in terms of Miscellaneous Order No. 512/2007 dated 31-5-2007 passed by the Tribunal in Appeal No. C/293/2005. He also suggested that the matter relating to DSNG equipment be remanded to the Commissioner for fresh decision. As regards other equipments it was submitted that the Commissioner had misinterpreted the condition pertaining to installation certificate. Commissioner had misunderstood the expression 'completion of imports' as 'completion of each import'. Counsel pointed out that some more equipments mentioned in the EPCG licences were yet to be imported, and argued that Notification No. 55/2003-Cus. had allowed six months time from the date of completion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted TV channels subject to condition that uplinking should be in 'C' Band by using 3 MHz capacity on THAICOM - 3 satellite. But, as per the technical parameters laid down by the WPC Wing of the Department of Telecommunications under the above Ministry through letter dated 24-5-2007 addressed to the appellant-company [produced along with Import Licence dated 25-5-2007], the allocated bandwidth was 2 MHz and, that too, on INSAT 2E satellite network. On this basis, learned JDR submitted that it was difficult to correlate the Import Licence dated 25-5-2007 produced by the appellants with the DSNG equipment imported by them. Referring to the condition relating to installation certificate, the DR supported the Commissioner's finding, by submitting that the import period allowed by the DGFT was 24 months only and that no extension of this period had been obtained by the appellant-company. The import period had expired long ago and hence there was no question of any further imports by the company under the EPCG licences. The DR also supported other findings of the Commissioner. 8.1. We have given careful consideration to the submissions. The classification of the DSNG system under EXIM C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OAD, 2nd STREET TEYNAMPET, CHENNAI -600018 (Hereinafter called licensee) during the term/period commencing on the day of the date hereof, and terminating on the last day of 24-8-2007 Licence and permission to import at CHENNAI the following apparatus for Wireless Telegraphs: ITEM NO. DESCRIPTION OF APPARATUS MODEL OR TYPE NO. AND MANUFACTURER FREQUENCY BAND (in MHz) POWER QUANTITY AS PER ANNEXURE-I This is only a clearance from technical angle and does not pertain to administrative and/or financial aspects of import. Please note that grant of import licence does not imply permission to establish, and operative a W/T equipment. A separate licence will be required for operational usage of equipment. Sd/ Astt/Dy. Wireless Adviser To the Govt. of India Ministry of Cormnunications IT. L-14027/1 /07-RLO(SR) SR-IMP-34 Item No. Manufacturer's Name Whether Transmitter/ Transreceiver or components thereof Model or Type No. Quantity Frequency of Operation RF Power Output Approx. CIF value, if known 1 2 3 4 5 6 7 1. C.P.I (Canada) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ministry in their letter dated 5-8-2003 in connection with permission for using mobile DSNG equipment are THAICOM - 3 Satellite and 3 MHz respectively. Non-mention of such parameters in the description of DSNG system in the Bill of Entry also stands in the way of correlation of the goods specified in Import Licence dated 25-5-2007 and those cleared by the appellants under Bill of Entry No. 6394 dated 6-8-2003. For all these reasons, we hold that the appellants failed to produce WPC licence in respect of the DSNG equipment covered by Bill of Entry dated 6-8-2003 at the time of its import and clearance or at any later stage. Consequently, the confiscation of the goods under Section 111(d) of the Customs Act is liable to be sustained. Before parting with this part of our order, we must also record that we have not found any 'misdescription' of the goods by the appellants inasmuch as the Revenue has not established that the description of goods as given in the Bill of Entry is at variance with that given in the relevant invoice or that the goods were different from the items mentioned in the relevant EPCG licence. Again, we have found a valid point for the counsel in having submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of a reasonable fine besides duty. In the facts and circumstances of this case, we are of the view that 15% of the value of the goods would be a reasonable fine for redemption thereof and this works out to Rs. 19,00,000/- (Rupees Nineteen lakhs only). The company will be entitled to redeem the DSNG equipment against payment of this fine. The duty foregone in Bill of Entry No. 6394 dated 6-8-2003 shall also be paid along with redemption fine as the company disentitled themselves to the benefit of the Notification by not fulfilling the mandatory requirement of installation certificate. 8.3. In respect of the remaining goods covered by the 10 Bills of Entry also, the Commissioner's decision to confiscate the goods under Section 111(o) of the Customs Act with option for redemption has to be upheld. We have already stated our reasons for such confiscation, in the case of DSNG system. The same reasons are equally applicable to other goods. However, the quantum of fine imposed by the Commissioner is rather harsh. He took 50% of the value of the goods to be the fine. Applying the same yardstick which we employed in the case of DSNG system, we reduce this fine to Rs. 21,00,000/- (Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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