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2019 (8) TMI 687

..... less fitness tracker having declared as Fitbit Alta - HELD THAT:- It is an admitted fact that ETAs produced by the importer were found to be fake on verification. Once the ETAs is found fake, the argument put forth by the learned Counsel of the appellants that country of manufacture was not relevant and not required to be mentioned on ETA holds no ground - Here country of manufacture is not in the dispute but there is a violation of relevant notification issued by the Ministry of Telecommunication No. GSR 45(E) dated 28/01/2005 which requires the importer to produce a valid ETA issued by the Ministry of Telecommunication. Once it is on record that the ETA was not issued by the Ministry of Telecommunication and was fake, all other arguments that country of origin was not required on ETA etc. become meaningless. Requirement of elements of mens rea - argument advanced by the learned Counsel is that they were not personally involved in the forgery of the ETAs and it was the third party who had given them fake ETAs and thus no mens-rea was involved on their part - HELD THAT:- In view of the fact that the Hon’ble Apex Court has held in a number of cases that mens-rea is not necessa .....

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..... 30/ERLO dated 01/12/2015 purportedly issued by Joint Wireless Advisor to the Government of India, Head of Office, Department of Telecommunications, Regional Licensing Office (East), Kolkata. It was observed that ETA certificate was issued for the goods manufactured in USA whereas the imported goods were manufactured in China. Suspecting that the goods were not genuine, investigations were initiated by SIIB against the importer. During the course of proceedings, it was noticed that 12 ETA were for the import of Fitbit fitness tracker/smart fitness watch/body motion pattern measuring tracker of different models under 30 bills of entry. In a search conducted at the Delhi warehouse of the importer on 20/07/2016, 3294 pieces of the subject goods was seized all of which were manufactured in China whereas the ETAs were for the USA manufacture. In a clarification issued to the importer, by the Department of Telecommunications New Delhi. It was made clear that if the manufacturer and the supplier were different, fresh ETA was required to be issued. Further, in an enquiry made from the Department of Telecommunication, Regional Licensing Office(East) New Delhi for verification of the ETA prod .....

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..... d 2400-2483.5 MHz, the ETA is valid. That the place of manufacture/country of origin is not a parameter on the basis of which ETA is granted. That for all intents and purposes, it is Fitbit Inc. USA, the owner of the brand Fitbit‟ that was the manufacturer and there was no mis-declaration in the ETAs. It is further argued that is fresh ETA certificate in favour of import was not required as long as the goods satisfy the technical specifications mentioned in the ETA. He further argued that no ETA was required in respect of accessories amounting to ₹ 7,11,137/- and hence the impugned order to the extent imposes penalty on accessories of Fitbit devices is not sustainable. Further argued that the appellant is in no way responsible or involved with the procurement of fake ETAs and as soon as the appellant came to know that the ETAs procured by the consultant of Fitbit Inc. USA were not genuine, they immediately requested Fitbit USA to obtain fresh ETAs which were duly obtained and submitted by the appellant before the Department and the learned Commissioner after considering fresh ETAs has held that the goods were not liable to confiscation under Section 111(d) of the Custom .....

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..... equired to be mentioned on ETA holds no ground. The argument could have some validity only when the ETA had been genuine and there was only dispute of country of manufacture or origin. Here country of manufacture is not in the dispute but there is a violation of relevant notification issued by the Ministry of Telecommunication No. GSR 45(E) dated 28/01/2005 which requires the importer to produce a valid ETA issued by the Ministry of Telecommunication. Once it is on record that the ETA was not issued by the Ministry of Telecommunication and was fake, all other arguments that country of origin was not required on ETA etc. become meaningless. 6. The other argument advanced by the learned Counsel is that they were not personally involved in the forgery of the ETAs and it was the third party who had given them fake ETAs and thus no mens-rea was involved on their part and hence they had not violated the provisions of Section 111(d) Customs Act with respect to imports. In his regard we find that in view of the fact that the Hon ble Apex Court has held in a number of cases that mens-rea is not necessary for contravention of a civil act. The Hon ble High Court of Madras in the case of Commi .....

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..... l Excise Act was imposed but only the quantum was not mentioned. As penalty under Section 11AC is mandatory penalty such mistake could be rectified. Further, penalty was proposed on the director in the show cause notice but no order was passed in the original order with respect to penalty either for vacating or imposing the penalty. Thus mistake was apparent on record which was rectified by the corrigendum. In this case no show cause having been issued and no penalty in the impugned original order been imposed, we cannot consider that the original order envisaged any imposition of penalty under Section 114AA. Even on merits we find that penalty under Section 114AA involves mens-rea on the part of the person who is held liable to penalty under section ibid as the section is applicable to persons who knowingly or intentionally makes use of the false document. The appellants have always taken this stand that the procurement of valid ETA was the responsibility of Fitbit Inc. USA and they had only produced ETAs procured by Fitbit Inc. USA through a third person. There is nothing on record that the appellant had knowingly or intentionally produced the false ETAs. Hence penalty under Sect .....

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