TaxTMI 
TaxTMI 
2012 (6) TMI 30
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....nication dated 16-5-2011 from the Commissioner of Customs, Cochin, Special Intelligence and Investigation Branch (IPR Cell). The substance of the said communication is that, of the various items of the goods imported by the appellant (numbering 23), three items are found to be objectionable items. According to the said communication, import of the said items amounts to infringement of the Trade Marks Act, 1999. It appears from the said communication that the respondents received complaints from two companies, M/s. Johnson & Johnson Ltd. and M/s. Wipro Cyprus Private Ltd. claiming to be the holders of a trade mark in the products specified by them and the import of the same would infringe the trade mark conferred on them. The Commissioner, therefore, called for certain informations from the appellant. The details of which are contained in paragraphs 4 and 5 of the said communication. The relevant portion of the said communication reads as follows : "Attention if invited to your Bill of Entry No. 3302152 dated 25-4-2011 filed for the import and clearances of consumer items including facecream bearing the registered Trademark, viz "Johnson's" brand, "Yardley" brand soaps and powder t....
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....d with the CBEC Circular 1/2007-Cus., dated 29-10-2007 issued there under and provisions of the Trade Marks Act, 1999. 6. Replies to this letter along with documentary evidences if any in support of your claim shall be submitted within fourteen (14) days from the receipt of this letter. In the event of failure of compliance to the directions herein, you will be liable for consequential penal action. 7. This letter is issued without prejudice to any other action that may be taken under the Customs Act, 1962, rules, Regulations there under or any other law for the time being in force in India." 3. On receipt of the said communication, it appears that the appellant sent a letter dated 18-5-2011, in substance, requesting the respondents to detain the three objectionable items referred to above and clear the rest of the imported goods. The relevant portion of the said letter reads as follows : "We therefore request you to kindly permit us to detain item Sl. No. 19 & 28 in the Bill of Entry and release the rest of goods. The Bill of Entry may be assessed and released on payment of duty for the rest of goods." 4. It also appears from the pleadings that on 2-6-2011....
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....roperty right infringement, department is bound to initiate proceedings, wherever import of goods with registered trade mark by authorized importers are noticed. On detailed scrutiny three items are found covered under intellectual property right regulations. Hence a single letter in this regard was issued. There is no piecemeal approach as alleged by the importer as the single letter Exhibit P-2 issued by Department to importer covers all these items. The contention that these items are not covered by Intellectual Property Right rules is also absolutely false and hence denied. 8. With reference to the averments in paragraph 2 of the writ petition, it is submitted that in view of the discrepancies noticed it appeared that this is not a bona fide import. Mis-declaration is noticed in the quantity, packing and description in respect of many items in the consignment. The track record of the importer, indicated that they habitually declare very low prices to evade duty also. Therefore it appeared that detailed investigation is required in this case." 7. By the judgment under appeal, the learned Judge opined that it is not a fit case for relief in the proceedings under Artic....
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....ns contained in Rule 6 of the abovementioned Rules, the import of such goods is deemed to be prohibited within the meaning of Section 11 of the Customs Act. The learned counsel further argued that apart from that even with reference to other goods, though the import of other items of goods is not prohibited under any law since (according to the respondents) the importer has undervalued the goods with a view to evade customs duty payable on such goods and secondly such goods are liable for confiscation under Section 111(m) of the Customs Act. Further submitted that, the importer is only a name lender for one Anvar and therefore, the goods are detained and the respondents are legally justified in making such a detention. 11. We shall first deal with the detention of three items of imported goods. The import of the said items is deemed to be prohibited in view of the abovementioned Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 framed in exercised of the power under Section 156 and 11(2)(n) and (u) of the Customs Act. Under Rule 3 of the abovementioned Rules, a "right holder" (a defined expression under Rule 2(d), may give notice in writing to the Commissi....
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....d. Section 17(1) and 17(2) of the Customs Act reads as follows : "17. Assessment of duty. - (1) After an importer has entered any imported goods under Section 46 or an exporter has entered any export goods under Section 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in Section 85, be assessed." 13. Under Section 18 of the Customs Act, it is provided that the customs authorities may make a provisional assessment of the duty of the goods imported if they are of the opinion that for any one of the reasons specified in Section 18 that it is not possible to complete the regular assessment contemplated under Section 17 of the Act expeditiously, and the goods may be released subject to the condition that the importer furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed. 14. The question of value of goods arises ....
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....orter-exporter Code Number granted by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General". The expression "import" occurring in the said section means bringing into India of goods as defined under Section 2(e). There is nothing in the law which requires an importer to be either the consumer or even the buyer of the goods also. Even otherwise, we are of the opinion that it is a matter of common sense that no importer would consume all the materials imported. Necessarily, the goods imported are meant for sale to the consumer, in which case, if an importer, who enjoys the facility of I.E. Code imports certain goods in the normal course of business on the strength of a contract entered by such importer with either a consumer or a trader who eventually sells the imported goods to consumers. We do not understand what can be the legal objection for such a transaction especially where the import of such goods is otherwise not prohibited by law. At any rate, if the respondents have any tenable legal objection on that count, the respondents must pass an appropriate order ind....