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TMI Blog2018 (5) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. In order-in-original no. AHM-CUSTM-000-COM-006-17-18 dated 30th November 2017 of Principal Commissioner of Customs, Ahmedabad, value of Rs. 5,11,97,571/- declared by M/s Raj Traders was rejected and the assessable value enhanced to Rs. 8,13,77,371/- under rule 9 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. The television sets confiscated under section 111(d) and 111(m) of Customs Act, 1962, were allowed to be redeemed for re-export on payment of fine of Rs. 50,00,000/- and penalty of Rs. 15,00,000/- was imposed. The adjudicating authority also rejected the value of Rs. 97,29,816/- declared by M/s Ideal Impex on import of panels for SONY television sets and re-determined the assessable value as Rs. 2,07,18,328/- under rule 9 of Customs Valuation (Determination Of Value of Imported Goods) Rules, 2007 while ordering absolute confiscation of the panels and imposing penalty of Rs. 10,00,000/- of M/s Ideal Impex under section 112 (a) (i) of Customs Act, 1962. A further penalty of Rs. 20,00,000/- was imposed on Shri Gurvinder Singh Kochhar, Manager and authorised signatory of M/s Raj Traders as well as power of attorney holder of M/s Ideal Impex. 2. El ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and, considering that the value intimated by other importers of the same goods, the enhancement of assessable value could not be faulted. On the import of panels for television sets, it is submitted by him that M/s Sony India Ltd had made it clear that the impugned goods had not been manufactured by the purported producer and, being violative of intellectual property rights laws was, liable to absolute confiscation and without recourse to redemption and that the enhancement of value, in all correctness had relied upon the prices furnished by the authorised dealer in India. 6. The first issue to be considered is whether the television sets are liable to confiscation under section 111 of Customs Act, 1962 for non-compliance with the compulsory registration scheme of the Bureau of Indian Standards. It is not in dispute that SONY Sony television sets have been procured from facilities which supply the same to M/s Sony India Ltd, and the registration for import by M/s Sony India Ltd being approved, compliance with the registration scheme is beyond question. The confiscation of SONY television sets under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rs. 5,00,000/-. 8. On the import effected by M/s Ideal Impex, absolute confiscation has been ordered in consequence of implementation of the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. The argument of Revenue is that India is a signatory to the convention under the aegis of the World Trade Organisation and, considering the commitment thereto, it is necessary for the Government of India and, in particular, customs authorities to ensure that imports are not in contravention of the provisions of the convention. 9. Undoubtedly, intellectual property rights and international conventions, acceded to by India, need to be complied with. These, convention, however, encompass a gamut which may not be entirely within the wherewithal and jurisdiction of customs authorities. To the extent that the jurisdiction of customs authorities are enabled by Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 customs authorities may intervene. Outside those rules such jurisdiction as may lie within the civil dispute resolution mechanism cannot be claimed. A plain reading of the said Rules would make this amply clear; the extent of enforcement at the border ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the purview of the Commissioner, only the law framed thereunder, and to the extent that it is. It is the Pope who defines what a catholic is and to be more catholic than the Pope is an invitation to exclusion by bell, look and candle. It is moot whether the Commissioner can claim that which the Central Government would not arrogate to itself. The self-restraint of the Government needs no further elaboration than the direction: "4. It is pertinent to mention that while the mandatory obligations under Articles 51 to 60 of the TRIPS dealing with border measures are restricted to Copyright and Trade Marks infringement only, the said Rules deal with Patents, Designs and Geographical Indications violations as well, in conformity with the practice prevailing in some other countries, notably EU countries. While it is not difficult for Customs officers to determine Copyright and Trade Marks infringements at the border based on available data/inputs, it may not be so in the case of the other three violations, unless the offences have already been established by a judicial pronouncement in India and the Customs is called upon or required to merely implement such order. In other words, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers needs to be regulated and exercised with utmost caution, given the fact that the liability for wrong detention in an ex-officio case would rest entirely with the department. ... xxxxxxx 19. Sub-rule (9) of Rule 7 of the said Rules, provides for seizure of infringing goods, if there are reasons to believe that the goods are liable to confiscation in terms of section 111 of the Customs Act, 1962. In this context, it may please be borne in mind that Customs is enforcing laws in personam while protecting intellectual property rights. Thus it is important to make sure that the right holder participates in the Customs proceedings. In case the right holder abstains, the Customs have no obligation to continue with the detention and the goods shall be released forthwith, if otherwise in order." in circular no. 41/2007-Customs dated 29th October 2007 of Central Board of Excise and Customs. 13. The Rules exist to detect and destroy counterfeits. Counterfeits can be detected only though the prescribed procedure. That does not appear to have occurred and, hence, the goods are not counterfeits. Section 11 and, consequently section 111, is not liable to be invoked. The confiscatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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