1995 (10) TMI 96 - AT - Customs

Tribunal upholds appeal dismissal, deems imported cine equipment legitimate under Tourist Baggage Rules.

COMMISSIONER OF CUSTOMS, BOMBAY Versus AJAY AJIT PETER KERKAR

COMMISSIONER OF CUSTOMS, BOMBAY Versus AJAY AJIT PETER KERKAR - 1996 (81) E.L.T. 299 (Tribunal) Issues Involved:1. Deliberate suppression of facts by the Respondent.2. Applicability of Tourist Baggage Rules for clearance of cine equipment.3. Justification of the redemption fine and penalty imposed by the Additional Collector of Customs.4. Legal provisions under Section 111(o) of the Customs Act.Detailed Analysis:1. Deliberate Suppression of Facts by the Respondent:The Revenue argued that the Respondent deliberately suppressed facts to obtain clearance under the Tourist Baggage Rules. The goods were not for personal or professional use but for commercial purposes in the studio of M/s. Cox & Kings. The Respondent was aware of the existence of CCP for the clearance of the cine equipment, which should have been produced, and the goods should have been cleared on payment of appropriate duty. The Respondent misdeclared the goods as baggage items and sought clearance on TBRE with an undertaking to re-export. When the re-export was not complied with, the Respondent sought to transfer the goods to CCP, which was already in existence at the time of import.2. Applicability of Tourist Baggage Rules for Clearance of Cine Equipment:The Respondent, represented by Shri Gagrat, argued that he was a Non-Resident Indian and Managing Director of Cox & Kings, which planned to produce a documentary on India's tourism. The Respondent claimed TBRE as cine equipment is covered under sub-rule (2) of Rule 3 of the Tourist Baggage Rules. The equipment was declared and an undertaking was given in terms of Rule 7. The Respondent argued that there was no suppression of facts as the equipment could be legitimately imported against CCP and claimed exemption under Notification No. 231/77. The Tribunal found that Rule 3(2) of the Tourist Baggage Rules allows the import of cine equipment duty-free on an undertaking to re-export within six months. The Respondent's action was within the legal provisions, and there was no mala fide intention.3. Justification of the Redemption Fine and Penalty Imposed by the Additional Collector of Customs:The Revenue contended that the Additional Collector took a lenient view by imposing a fine of only Rs. 1.00 lac without imposing a penalty. The Tribunal noted that the Respondent declared the item, gave an undertaking, and sought an extension of the re-export period. The Tribunal held that when two legally permissible options are available, the citizen can choose the one best suited to him. The Tribunal found no mala fide intention in obtaining TBRE and no overt attempt to evade duty or circumvent prohibition. The Tribunal also noted that the equipment was re-exported within the extended period allowed after adjudication.4. Legal Provisions Under Section 111(o) of the Customs Act:The Tribunal examined Section 111(o) of the Customs Act, which deals with the confiscation of goods exempted from duty subject to conditions. The Tribunal found that the goods were eligible for clearance under TBRE, and the only condition was re-export within six months, which can be extended up to 18 months by the Commissioner. The Tribunal noted that the goods were re-exported within the extended period allowed. The Tribunal concluded that the case did not call for a penalty and that the Additional Collector's order of confiscation and the quantum of fine were final as there was no appeal or cross-objection from the Respondent.Conclusion:The Tribunal dismissed the appeal, finding no merit in the Revenue's arguments. The Respondent's actions were within the legal provisions of the Tourist Baggage Rules, and there was no deliberate suppression of facts or mala fide intention to evade duty. The redemption fine imposed by the Additional Collector was deemed appropriate, and no penalty was warranted under the circumstances.