By TIOL News Service

NEW DELHI, JAN 13, 2017: THE appellant filed a Bill of Entry dated 29.10.2012 and declared import of unbranded motorcycle parts. On the basis of prior intelligence, Customs Officers, on 100% examination of the imported goods, found that the imported goods were actually branded ones. "Roll On" brand motorcycle chains and "STEBEL" brand horns where found. Customs authorities took the view that the importer has mis-declared the imported goods and seized the goods under section 110 of the Customs Act, 1962. Subsequently, on the request of the importer, the goods were permitted to be warehoused under Section 49 of the Customs Act 1962. Further, on investigation, it was found that the imported goods "Roll On" brand motorcycle chain were counterfeit. Consequently, the original authority vide his order dated 17.12.2013, ordered confiscation of the imported goods and allowed redemption on payment of RF of Rs 1 lakh. The Original Authority also re-determined the value and demanded differential Custom duty as well as imposed penalties.

When the order was challenged before Commissioner (Appeals), he did not interfere with the confiscation of counterfeit goods. However, in respect of horns, the redemption fine and penalties were reduced. He upheld the re-determination of value for the horns.

In the present appeal the appellant has submitted that the supplier has issued a certificate dated 16.2.2012, admitting that goods were dispatched wrongly with reference to the purchase order. Further, vide the letter dated 2011-2013, the supplier has requested the importer to return the wrongly supplied goods for which he offered to bear the shipping expenses. They further submitted that the payment to the supplier for the consignment has already been made by appellants. Accordingly, they prayed that permission may be granted for re-export of the goods to the supplier.

The Tribunal observed,

"The appellant filed a Bill of Entry and declared the import goods as unbranded motorcycle parts. However, the goods were 100% examined by the Customs authorities. During such examination, the goods were found to bear a brand name. Consequently, mis-declaration of the imported goods stands established and the goods are liable for confiscation under Section 111(m) and 111(l) of the Customs Act, 1962. In this regard, the findings by both the authorities below merit no interference.

The appellant has submitted correspondence with the supplier, who has admitted that wrong consignment has been sent to the appellant with reference to purchase order placed on them. Further, it has been submitted that the supplier has requested to send setting back the wrongly consignment and has agreed to bear the shipping expenses. The appellant has also pleaded that the payment for consignment has already been made and they will be put to hardship if the goods are not re-exported.

We have gone through case laws relied upon the appellant and find that in these cases, re-export has been permitted in the cases of wrong consignment. In the present case, however, we find that the wrong supply has been made of goods baring counterfeit brand name. This involves not only mis-declaration of imported goods, but also infringement of Intellectual Property Rights. We are of the view that since the exporter is willing to take back the wrongly supplied goods, the same should permitted. However, in the facts and circumstances of the case, we impose a penalty of Rs 1 lakh on the importer under Section 112 of the Customs Act, 1962."

(See 2017-TIOL-118-CESTAT-DEL)