TMI Blog2021 (5) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... er on 24-11-2016 a copy of which was enclosed as Annexure 20 to the Appeal, the ETAs are valid even if they are of a different country of origin. The two fake ETAs accounted for goods worth ₹ 1,26,69,14/- while the remaining 14 FTAs accounted for goods worth ₹ 1,39,45,581/-. We find that this mistake needs to be rectified in the Final Order. The second alleged mistake is that they had obtained fresh ETAs in lieu of the fake ones which they had initially submitted, therefore, the goods imported were not liable for confiscation. We find that this submission was made and was recorded in paragraph 3 and the decision was recorded in paragraph 7 of the Final order - this submission was considered and in the Final Order, the appellant was still considered liable to penalty. There is no error apparent on record. The third submission is that there is no prohibition on import of wireless devices which was not considered by Tribunal in the Final Order - in paragraph 3 of the Final Order, the argument of the appellant that the goods were not liable for confiscation as they were not imported contrary to any prohibition under the Customs Act or any other law for the time being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uine 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. 3. It is the submission that the above observations were not consistent with the facts. They had imported Fitbits whose import is said to require an Equipment Type Approval [ETA] from the Department of Telecommunications [DOT]. They imported Fitbits under 30 Bills of Entry using 16 ETAs. Of these only two ETAs dated 24.11.2015 and 1.12.2015 which were fake. The goods imported using these two fake ETAs were valued ₹ 1,26,69,140. The remaining goods valued at ₹ 1,39,45,581 were imported using the ETAs which were not fake but they were issued by the Wireless Planning Committee (WPC) of the DOT for goods manufactured by Fitbit USA whereas they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... example of M/s Apple India Private Limited was cited, In this case, M/s. Apple India Private Limited filed a Bill of Entry for import of Smart Watches having Bluetooth facility declaring country of origin of the subject goods as China while the column 3 of the ETA produced by them indicates the name of the manufacturer to be Apple Inc, USA. Accordingly, a clarification was sought by the Customs from the Department of Telecommunication, Ministry of Communication IT, Government of India, WPC Wing whether clearance of the goods against such an ETA certificate could be allowed. In reply dated 7.11.2016 received from D. Jha, Sr. Deputy Wireless Advisor (C) it was intimated that since the manufacturer M/s Apple Inc, China and M/s Apple Inc, USA are different they need to apply for a fresh ETA from RLO (NR), WPC Wing, New Delhi. It was pointed out by representatives from the trade that owing to the fact that ETA is issued for a particular produce with defined specifications, it should be valid as long as the imported goods conform to the given specifications regardless of the fact that the goods may have been manufactured by another group company or subsidiary of the company, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance Communication Ltd. 2014 (301) E.L.T. 571 (Tri- Mumbai); Dawar Radios versus Commissioner of Customs, Mumbai, 2003 (160) E.L.T. 844 (Tri-Mumbai) 9. The last submission is that there are no findings on the penalty imposed on the applicant under Section 112 (a) (ii) of the Customs Act, 1962. It has been submitted by the Learned Counsel that Section 112 (a) (ii) provides for imposition of penalty not exceeding 10% of the duty sought to be evaded or ₹ 5,000 whichever is higher. 10. For the aforesaid reasons, it has been prayed that the Final Order may be recalled and modified to the extent it is prejudicial to the interest of the appellant and the mistakes as pointed out above be rectified with consequential reliefs. 11. Learned Authorised Representative of the Department opposed the application. He submitted that an application for Rectification of Mistakes (ROM) under Section 129B(2) of the Customs Act, 1962 read with Rule 41 of the CESTAT Procedure Rules, 1982 can be filed only when there is an error apparent on record and it cannot be used as a mechanism to review the decision as held by the Larger Bench in the case of Dinkar Khindria versus Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d initially submitted, therefore, the goods imported were not liable for confiscation. We find that this submission was made and was recorded in paragraph 3 and the decision was recorded in paragraph 7 of the Final order as follows: 3 ..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 Customs Act as those were not imported contrary to any prohibition imposed under the Customs Act or any other law for the time being in force in as much as it is procured by the appellant from WPC authorities are valid since there exists no requirement to obtain different ETAs for identical goods manufactured in different countries under the same brand name. It has further been argued that there was no mens-rea as it was a third party fault and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mens-rea is not an essential ingredient for confiscation and imposition of penalty for contravention of provisions of a civil act. He also argued that as per Foreign Trade Policy 2015-2020 paragraph 2.03, all the domestic Laws/ Rules/ Orders/ Regulations/ Technical specifications/ environmental / safety and health norms applicable to domestically produced goods shall apply, mutatis mutandis, to imports unless specifically exempt . 20. After considering both arguments, it was held in the Final Order that the goods were liable for confiscation and the appellant was liable to penalty under Section 112 (a) of the Customs Act. Thus, we find that there no mistake apparent on record to be rectified. 21. We have also examined the assertion of the learned Counsel that there is no restriction or prohibition on import of the goods in question under the ITC(HS) Classification and also not under the Notification or under the Indian Telegraphy Act, 1885 or under the Indian Wireless Telegraphy Act, 1933. Therefore, the argument is that the goods were not liable to confiscation. 22. Section 111(d) of the Customs Act, 1962 renders any goods which are imported or attempted to be imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of paragraph 2.03. These two paragraphs read as under: 2.01 Exports and Imports Free , unless regulated (a) Exports and Imports shall be Free except when regulated by way of prohibition , restriction or exclusive trading through State Trading Enterprises (STEs) as laid down in Indian Trade Classification (Harmonized System) [ITC (HS)] of Exports and Imports. The list of Prohibited , Restricted , and STE items can be viewed by clicking on Downloads at http://dgft.gov.in (b) Further, there are some items which are free for import/export, but subject to conditions stipulated in other Acts or in law for the time being in force. 2.03 Compliance of Imports with Domestic Laws (a) Domestic Laws/ Rules/ Orders/ Regulations/ technical specifications/ environmental/safety and health norms applicable to domestically produced goods shall apply, mutatis mutandis, to imports, unless specifically exempted. (b) However, Goods to be utilized/ consumed in manufacture of export products, as notified by DGFT, may be exempted from domestic standards/ quality specifications. 27. Thus, compliance with paragraph 2.03 of this FTP is also a requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Treatment under paragraph 2.03. Therefore, we find no force in the argument of the applicant that their import was not in violation of any law and hence the imported goods were not liable for confiscation nor were they liable to penalty. 30. The last submission is that there are no findings on the penalty imposed on the applicant under Section 112 (a) (ii) of the Customs Act, 1962. It has been argued that Section 112 (a) (ii) provides for imposition of penalty not exceeding 10% of the duty sought to be evaded or ₹ 5,000, whichever is higher. 31. We find that the penalty was upheld in the Final Order under Section 112 (a) of the Customs Act. The impugned order in original does mention Section 112(a) (ii) in the operative part. 32. Section 112 reads as follows: SECTION 112. Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, conceal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 112 (a) (ii). The allegations made and upheld squarely fall under Section 112 (a) (i). If in the operative part of the impugned order Section 112 (a) (ii) was mentioned instead, in the factual matrix, it cannot be called anything more than a typographical error which will not vitiate the penalty imposed. 34. The argument of the learned Counsel that the penalty cannot be more than the duty sought to be evaded under Section 112(a)(ii) is untenable since there was neither any allegation of attempt to evade payment of duty by the department nor any arguments were made on this point. We therefore, find that there is no force in this argument. The quantum of penalty, however, needs to be reconsidered, since 14 of the 16 ETAs were genuine with only wrong Country of Origin, which, according to the final clarification of the DOT does not matter and the ETAs are valid. 35. For all the reasons stated above, the Final Order dated 8.8.2019 passed by this Bench stands modified as follows: a. Paragraph 5 shall be read as Having heard both sides and on perusal of appeal records, we find that it is an admitted fact that two of the ETAs produced by the importer under which goods val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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