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TMI Blog2024 (3) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... y units) of different models of I-phone covered in one of the two HAWBs and 174 number of back panels (including camera etc.) along with mobile chips screens and IMEI strips covered under another HAWB of same master airway bill had been seized by said Commissionerate in Courier Bills of Entry (CBEs). The goods were wrongly classified under CET SH 85340000 which attracts NIL rate of BCD whereas mobiles are classified elsewhere with 18% IGST. The item described in the Bills of Entry was CTH 85340000 which is "printed circuits", however, on physical examination, no printed circuits were found. Hence the classification was not acceptable indicating clear motive of Courier to evade customs duty. 3. Appellant/ authorized courier admitted to have filled CBEs. During further investigation of the said matter, serious involvement of the authorized courier M/s ECG Easy Connect Logistics Pvt. Ltd., the appellant also surfaced. It was found that the consignments were imported in the name of two different consignees namely M/s Mangalmurti Traders, Nagpur and M/s Kripa Shankar Maurya of Kolkata. However, from the proof of delivery submitted by the courier, it was observed that the consignment wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs of enquiry report exonerating the appellant were accepted holding that Regulation 12 (1) of CIER, 2010 has not been violated by the appellant. The original adjudicating authority accordingly refrained from revoking the appellant's courier registration and from forfeiting the security deposit; even from imposing any penalty on the appellant. 5. Subsequent to the said order, the investigations by SIIB were concluded. Pursuant, another show cause notice No. 16/2021 dated 30.09.2021 was served upon both the importers M/s Mangalmurti Traders and M/s Kripa Shankar Maurya, the beneficial importer Anoop Kumar Maurya, on Gulshan Kumar Singh and also on the appellant proposing the imposition of penalty under Section 114AA of the Customs Act, 1962. The said show cause notice was adjudicated vide order-in-original No. 166/2023 dated 14.07.2023 confirming the proposal against both the importers, the beneficial importer namely Anoop Kumar and the Gulshan Kumar. However, the authority refrained from imposing any penalty on the appellant holding that the appellant has complied with the KYC norms and in respect of delivery of imported goods at Delhi instead of Nagpur and Kolkata, the proof of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving the said authorization. It is also impressed upon that the period in question was period of COVID Pandemic, for want of any transportation to the required places (Nagpur/Kolkata), the goods were desired to be delivered in Delhi itself. 9. With respect to filing of courier bills of entry (CBEs) it is mentioned that those were properly filed with proper classification of the goods as per the invoices which were received from the shipper/consignor. The item description therein was specifically as mobile parts (PCB & LCD) under 85340000 and 90138010. The same was mentioned in CBEs without mis-declaring either the quantity, value or the description. Otherwise also, the courier appellant had no motive of any connivance. The evasion of customs duty by the appellant has wrongly been alleged. It is also submitted that there is no possibility of tempering or modifying anything with respect to the particulars of the invoice including date, while filing or uploading on customs ECCs portal, hence, the involvement of the appellant and misconduct alleged by the department has no basis. All the allegations were duly replied with by the appellant vide their reply dated 25.10.2021 to the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed representative of the right holder of "Apple" namely M/s Anand & Anand is also impressed upon vide which it was reported that 173 pieces of yellow colored stickers having IMEI number are counterfeit and are found to be in violation of the Intellectual Property Rights of the Right Holder and the numbers are likely to be reused for packaging with devices inside to be sold as new. The importer had imported counterfeit Apple products with the malafide intention of selling the same as genuine in the open markets and thereby deceiving the general public at large. The aforesaid modus operandi of the importer is not permissible under the provisions of The Trademarks Act, 1999 and the Customs Act, 1962. However, vide email dated 17.03.2021, M/s Anand and Anand informed that the right holder does not wish to join the proceedings with the back panels, front panels, and other unbranded accessories. Based on this report violation of IPR is alleged. The valuation of these goods was arrived at with the help of Chartered Engineer Report dated 15.07.2021. Thus, there is sufficient evidence on record to prove the connivance of appellant with the importer and beneficial importer and concealment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these iPhones and its parts which are the goods for consumer industry use, as such the goods cannot be constituted as e-waste; (ii) all the items are in new condition; (iii) the items seem to be duplicates/fakes/likes/spurious; (iv) the items are of iPhone various models make a set of each type by combining the top and bottom of the respective models; (v) The assessable value as suggested by CE for both consignments is Rs. 12,98,888.20, whereas the value declared by appellant in impugned CBEs for both these consignments is Rs. 6,49,444.00. This certification falsifies that the imported goods are spare parts PCB LCB clarifying that description declared by appellant is wrong. In addition, the value declared is certified to be less than the assessable/actual value clarifying that the valuation filed by appellant is also wrong. No evidence is otherwise produced by appellant to show that value declared is the correct value. 13. We further observe that Right holder, Apple Inc. vide their letter dated 12.03.2021 has submitted as follows :- (i) the stickers bearing the Apple word mark are counterfeit and found to be in violation of IPR. (ii) the IMEI number on the stickers all refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of all three Shri Kripa Shankar, Shri Gulshan the employee of appellant and Shri Anoop that all the signatures are of Suraj but few digits of his mobile number has been altered deliberately. No rebuttal to this testimony is brought on record by the appellant nor these statements have ever been objected by the appellant. (iv) Shri Sanjay Dagar, G card holder of the appellant, in his statement dated 13.10.2020 has clearly stated that the two importers are in no way related to each other, whereas the delivery of both the importers have been made to same person Suraj in most of the cases. Same phone number appears on the invoices of both the HAWBs 200002003 and 200002004. The goods have been deliberately mis-declared and mis-classified under CTH 85340000 by the authorized courier so as to attract NIL rate of BCD. (v) All of the importers in their statements as well as Shri Dagar have stated that the Courier Company, i.e. M/s ECG Easy Connect Logistics Pvt. Ltd., files the CBEs and decides the CTH. This is the basic role of a courier who acts on behalf of customs department to correctly declare the CTH of goods for the correct assessment of duty. In this era of self-declaration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 dated 01.09.2023 where the arrangement of revocation of customs broker license was held dis-proportionate to the act of violating CIER. However, we are of the opinion that the said decision is not applicable to the case in hand. 16. The appellant herein is a courier agency as different from a customs house agent. The procedure in case of goods imported through courier are slightly different than goods imported through normal channels where the importer usually engages a customs broker who files the Bill of Entry as per documents provided by the importer and upon clearance through the customs after payment of duty the importer takes the goods. Whereas the courier manages the entire chain from the overseas consignor to the Indian consignee through the customs. The Courier company not only processes the clearance of the goods through the customs but actually receives the goods from the overseas exporter, transports them to India, clears them through the customs and further delivers them to the consignee in India at his address. The Regulations regulating this process provide for licensing of couriers who only can handle this work. In such imports, after the goods are brought into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situated at two different and distant locations. Appellant concealed the said vital information. 19. The appellant's main contention is the inquiry report dated 13.01.2021 is in favour of appellant. It has been held that the appellant has abided by all the provisions of the act and CIER Regulations. Alleged violation of Regulation 12 CIER has been ruled out. However the said report and the said order-in-original has been ignored by the order under challenge. We observe that order dated 05.02.2021 has been discussed in the order under challenge. It has been observed therein that despite an investigation was under process with SIIB and status thereof was demand but was not produced till the time of said inquiry report dated 13.01.2021 and the said order-in-original dated 05.02.2021. The adjudicating authority has also observed that following material evidence was produced subsequently by SIIB. (i) Inspection report Ref. No. 16561/Customs-27 dated 12.03.2021 was submitted by M/s Anand and Anand, the right holder of the "Apple"/"iPhone, wherein it was informed that 173 pieces of yellow colored stickers having IMEI No. were counterfeit and were found to be in violation of the Intelle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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