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TMI Blog2020 (6) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... neous application is allowed. 3. The brief facts in Appeal No.54220 of 2014 are that it appeared to Revenue that the appellant have imported wireless transmitting/receiving apparatus, satellite communication equipment, etc. against the forged import licence purported to have been issued by the Wireless Planning and Coordination (WPC), Wing of the Ministry of Communication and Information Technology, Government of India, in terms of the Notification No.71-Customs dated 25.09.1953, issued under Section 19 of the Sea Customs Act, 1878, as amended by notification no.48-Customs dated 20.05.67 issued under Section 11 of the Customs Act, 1962. Further, such imported equipments were supplied to various T.V. Channels and other communication companies. 4. The appellant is engaged inter alia in providing assistance to telecommunication companies in applying and obtaining WPC licenses from the Department of Telecommunication, Government of India, which is required for import of certain telephony equipments listed in Chapter 85 of the Customs Tariff Act. 5. Premises of the appellant company and its Chairman - Ashok Gupta-Chairman of M/s. Alliance Strategies Ltd., Shri Sanjay Sachdeva, CEO, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roadcasters. He further stated that in the course of his duties, he could learn that "Shri Sanjay Sachdeva, Director' and CEO of the appellant was involved in preparing fake or forged WPC licences. In one instance, when the licence was filed in the case of import by the appellant, the customs officer got suspicious. Thereafter on seeing the file of import licence in the office, he could notice that many licences were having different stamps and bearing varying signatures of the same officer. 8. Statement of Shri Ashok Gupta, Chairman of the appellant was recorded, wherein he stated that day-to-day operations of the appellant company were looked after by Shri Sanjay Sachdeva, the whole time Director and CEO. He was looking after the finance. The Consultancy and Integration Business was looked after by Shri Jaspal Choudhary, Manager (Liaison), Ms. Anuradha Diwan, Asstt. Manager (Regulatory), Mr. Digvijay Singh, Asstt. Manager and Shri Amit Bhushan, Asstt. Manager (Finance & Accounts), all were reporting to Shri Sanjay Sachdeva. The appellant company used to make importation of equipments based on the order placed by the Indian vendors, and the Equipment Type Approval (ETA)/WPC licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uine. 11. In the course of investigation, the statement of Shri Inderjeet Singh, Manager of M/s. Aricent Technologies had been recorded, who, inter alia, stated that he was working as Manager Corporate (Procurement) since April, 2010 and their company is M/s. Aricent Technologies, NIC, USA. They imported all types of IT equipments. They imported and interacted directly with IT vendors located abroad. For some of the items, WPC import licence was required, which were issued by the DOT. That till 2008, they have procured the WPC licence through the appellant. For their requirement, they used to interact with M/s. ASL through email. M/s. Alliance charged a fee of Rs. 10,000/- plus Rs. 500 (DOT fee) plus service tax for which they received an invoice and payment was made by M/s. Aricent by cheque. 12. On being shown, the following three licences:- i. Import Licence No.NR-IMP/912 dated 10.04.2008 ii. Import Licence No.NR-IMP/1539 dated 13.08.2008 iii. Import Licence No.NR-IMP/1440 dated 05.08.2008 Licence with verification report of the DOT, mentioned that the above three licences are not genuine, Shri I. Singh stated that they were not aware about any forged licences. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons, who have been licensed to import such apparatus by the Ministry of Communication. 16. It further appeared that one of the clients of the appellant, (M/s. Aricent Technologies (Holding) Ltd.) have imported several apparatus/equipments for wireless communication vide bills of entry during April, 2008 to October, 2008 as per the documents seized vide Panchnama dated 27.01.2012. However, no proper WPC licence for import was produced at the time of import. Thus, there appears violation of Section 111(d),(m), read with Section 112 (a)(b) of the Customs Act, 1962, by M/s. Aricent Technologies by importing the goods valued at Rs. 99,65,131/- under forged WPC import licences by intentionally mis-declaring, and thus the goods are liable to confiscation. Accordingly, show cause notice dated 26.07.2012 was issued as to why the seized goods valued at Rs. 99,65,131/- were imported under the bills of entry, as follows:- "i) The seized goods valued at Rs. 99,65,131/- (Rs. Ninety nine lakhs sixty five thousand one hundred and thirty one only) imported under B/E Nos. 222730, dated 17.09.2008, 975017, dated 25.4.2008 and 248755 dated 14.10.2008 should not be confiscated under Section 111(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty of Rs. 15 lakh each was imposed under Section 112, on M/s. Hughes Network Systems Ltd. Further, penalty on this appellant and its Director/employees was imposed as follows:- Name Penalty under Section 112 (Rs) Penalty under Section 114AA (Rs) M/s. Alliance Strategies Ltd. 1,50,00,000/- 1,50,00,000/- Ashok Gupta, Chairman, ASL 20,00,000/- 20,00,000/- Sanjay Sachdeva, CEO, ASL 20,00,000/- 20,00,000/- Jaspal Singh Chaudhary, Manager, ASL 20,00,000/- 20,00,000/- Amit Mahajan, Ex-manager, ASL 6,00,000/- 6,00,000/- Ms.Anuradha Diwan, Asstt. Manager, ASL 6,00,000/- 6,00,000/- 20. Being aggrieved, these appellants and all others filed appeals before this Tribunal. This Tribunal earlier took up the appeals of others, except this appellant, which were heard on 3.8.2017 and vide Final Order No.9951-995177 dated 18.8.2017, this Tribunal held that M/s. Aricent Technologies (Holdings) and M/s. Hughes Communication India Ltd. have used forged licenses for import of communication/transmitting equipments and they cannot take shelter of the discrepancy on the part of M/s. Alliance Strategies Ltd. (this appellant). It is primary responsibility of the importer to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no WPC licence is required. All the consignments were cleared by the Customs officers after proper scrutiny and verification of the documents including the WPC licences. No objection was raised by the Customs officers at the time of clearance of the goods. 24. Show cause notices were issued to this appellant, alleging that the importer company had imported wireless telephony equipments against the forged and fabricated WPC licenses, rendering the goods liable for confiscation. It was further alleged that this appellant had arranged the said forged and fabricated licenses, thereby rendering them liable to penalty. Ld. Commissioner failed to appreciate that the WPC licences were valid and were procured on the basis of the application filed online, after following the prescribed procedure. At the time of customs clearance of the goods imported against licence, the WPC licenses were subjected to proper scrutiny and verification. 25. This Tribunal has placed reliance on the statement under Section 108 of the various persons, particularly the Directors and the employees of this appellant, to hold that the licenses in question were forged. However, truth and veracity of the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s:- "Please find enclosed copies of the WPC licence issued to Alliance Strategies Ltd. by the Ministry of Communication and IT Department and Tele-communication , WPC Wing, New Delhi for import of wireless transmitting and or receiving apparatus. You are requested to verify the genuineness of the same and send a report at the earliest. The name of the importer and licence nos. This issues under powers vested under Section 108 of the Customs Act, 1962. In reply, the Asstt. Wireless Advisor, WPC Wing, DOT by his letter dated 17/18.10.11. have replied as follows:- "I am directed to refer to your letter No. DRI F.No. 338/XVII/49/ 2011-GI/dated 13.10.2011 on the above mentioned subject and to state that the licence copies received from you, vide your earlier letter dated 03.10.2011, has been matched with the Dispatch Register entry. Copy of which made available to this office by DRI based on such matching it has been found that all licenses mentioned in para 1 i.e. M/s Alliance Strategies Ltd. and para 2, M/s Tata Elxsi Ltd, Bangalore have no entry in the Dispatch Register. It is hence concluded that these licenses do not appear to be genuine. This has been endorsed on the License ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries - 2008 (227) ELT 363 (All.), (ii) Methodex Systems Ltd. - 2001 (127) ELT 44 (M.P.) and (iii) Saraswati Rubber Works (P) Ltd. - 2006 (205) ELT 993 (T-Delhi). 28. It is further urged that although DRI has resumed all documents/files pertaining to the licence under dispute from the DOT, however, neither copies of such documents have been provided nor any inspection permitted. Thus, proper opportunity of hearing has not been given, resulting in mis-carriage of justice. 29. It is further urged that in spite of request of the appellant for cross-examination of persons/officers, whose signatures appeared on the disputed licenses and of the officers, who have given opinion that the said licences are fake. It was required to obtain the confirmation from the officers, who have issued the licences or alternatively obtain the opinion of the forensic experts, to ascertain the genuineness of the licences in question. Thus, in absence of such exercise, the allegations of the Revenue are vague and not sustainable. 30. Further, it was also urged that no adverse opinion can be drawn against the appellant merely on the allegation that two rubber stamps were recovered from their off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the voluntary nature of the other statements as well. 32. Ld. Counsel further refers to the precedent decision of this Tribunal in the case of M/s. Ingram Micro India Pvt. Ltd. in Customs Appeal No.50259 of 2019, wherein a Coordinate Bench vide Final Order No.51067 of 2018 dated 8.8.2019, under the similar facts and circumstances, it has been held that it is the prima facie responsibility of the importer to make true and correct declaration and to file genuine documents for clearance. This Tribunal held that the "Equipment Type Approval' (ETA) certificates produced by the importer were found to be fake on verification. Although the ld. Counsel had argued that they have not indulged in any forgery in obtaining the ETA certificates and they have engaged the third part for the purpose of obtaining such certificates from the competent authority. This Tribunal held that once the ETA certificate is found to be fake, the importer cannot escape the liability for contravention of Section 111(d), which states that the goods imported in contravention of the Customs Act or any other law for the time being in force would be liable to confiscation. This Tribunal allowed the appeal in part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 5 cases, the required WPC approval was not from authorized department but was prepared and forged by concerned executives of the appellant firm. It emerges from the various statements, enquiries made with WPC wing of the Ministry of Communication that certain WPC approvals were not appropriately issued and were forged and such approvals have been used for obtaining clearances of import consignments. It is a matter of record that the concerned importing firm have already been penalized for such lapses. We find that though the WPC approvals were not appropriately issued, the investigations have not brought out categorically whether the equipments imported and cleared on the strength of such forged WPC approvals were in violation of technical norms prescribed for such equipment for importation or not. We also find that no findings in this regard have also been given in the impugned order-in-original. We also take note of the fact that for the equipment which basically meet the technical specifications, the WPC approval were provided as a matter of routine and the appellants have actually been obtaining the required WPC approval from the concerned department but this fact also does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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