1994 (9) TMI 166 - AT - Customs

Tribunal Grants Waiver for Customs Duty & Fine, Recognizes Export of Services

TATA UNISYS LTD. Versus COLLECTOR OF CUSTOMS, NEW DELHI

The Tribunal granted the applicant's request for a waiver of pre-deposit of customs duty and fine, amounting to Rs. 2,93,68,904/- and Rs. 20,00,000/- ... Stay/Dispensation of pre-deposit Issues Involved:1. Waiver of pre-deposit of customs duty and fine.2. Definition and scope of 'goods' under Customs Act and Notification No. 339/85-Cus.3. Jurisdiction of the Collector of Customs in monitoring export obligations.4. Correlation between imported goods and export obligations.5. Interpretation of 'goods' to include services.Issue-wise Detailed Analysis:1. Waiver of Pre-deposit of Customs Duty and Fine:The applicant sought a waiver of pre-deposit of Rs. 2,93,68,904/- demanded as duty and Rs. 20,00,000/- imposed as fine in lieu of confiscation. The applicant argued that they had met the export obligations by providing computer consultancy services abroad, which should be considered as 'goods' under the Customs Act. The Tribunal, considering the full disclosure of facts and the approval by the Government of India for the export of consultancy services, allowed the stay petition unconditionally, directing an early hearing.2. Definition and Scope of 'Goods' under Customs Act and Notification No. 339/85-Cus:The applicant argued that 'goods' should include services, based on the inclusive definition in Section 2(22) of the Customs Act and the Government of India's policy on computer software export. The department contended that 'goods' referred to tangible items and did not include services. The Tribunal noted that the definition of 'goods' in Section 2(22) includes 'any other kind of moveable property' and, prima facie, could encompass services. The Tribunal emphasized that modern interpretations should consider technological advancements and new facts.3. Jurisdiction of the Collector of Customs in Monitoring Export Obligations:The applicant contended that the Collector of Customs had no jurisdiction to monitor export obligations, which was the duty of the Development Commissioner of NEPZ. The Tribunal observed that the Collector could demand duty if the capital goods were not used within the Zone as required. However, since the applicant had used the imported goods for the approved purposes, the Tribunal found no justification for the duty and fine imposed.4. Correlation between Imported Goods and Export Obligations:The department argued that the applicant did not correlate the imported goods with the export obligations. The applicant maintained that the contracts and the use of imported goods at NEPZ were directly related to the consultancy services provided abroad. The Tribunal found that the adjudicating authority had not thoroughly examined the correlation and had not given the applicant an opportunity to establish the same. The Tribunal, therefore, allowed the stay petition, noting that the requirements for exporting through shipping bills were procedural and could not be fulfilled due to the nature of the services.5. Interpretation of 'Goods' to Include Services:The applicant cited the Supreme Court judgment in Senior Electric Inspector v. Laxminarayan Chopra, arguing for a broad interpretation of 'goods' to include services. The Tribunal agreed, noting that the inclusive definition in Section 2(22) of the Customs Act and the absence of a specific exclusion of services supported a liberal interpretation. The Tribunal also referenced the General Clauses Act, which includes 'moveable property' within the definition of goods, further supporting the inclusion of services.Separate Judgment by Member (J):Member (J) disagreed with the majority, arguing that the applicant had not produced tangible goods for export and had only provided training, which did not constitute 'goods' under the Customs Act. He emphasized the need for tangible, marketable goods and found the applicant's arguments to be an attempt to evade customs duty. He directed the applicant to deposit the entire duty amount and a part of the penalty.Final Order:In terms of the majority order, the pre-deposit of customs duty and penalty was waived, and recovery was stayed till the pendency of the appeal. The registry was directed to list the appeal for final hearing in November 1994.