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PJ/Case Law/2013-14/1657

Whether penalty imposable under section 112(a) of Customs, 1962 when old and used mobile phones are imported?

Case:-AMDOCS DEVELOPMENT CENTRE INDA PVT. LTD. VERSUS C.C., AIRPORT, MUMBAI

Citation:-  2013(293) E.L.T. 369(Tri.-Mumbai)

Brief Facts:-The applicants are seeking waiver of pre-deposit of the penalty imposed on them under Section 112(a) of the Customs, 1962. The facts of the case are that the appellant imported 32 mobile phones which were found on examination, to be old and used. Therefore, the entire consignment was confiscated as the same were held to be in violation of the EXIM Policy and hence the goods are prohibited goods. A penalty of Rs. 50,000/- has been imposed under Section 112(a) of the Customs Act, 1962.

Appellant’s contention:-The appellant submitted that the applicants are not aware of the fact that the impugned mobile phones are old and used ones, and they imported the said goods under bona fide belief. It is also contended that these mobile phones are the capital goods for development of softwares in India. Therefore, they have not violated the EXIM Policy.
Reasoning of judgment:- We have considered the submission from both the parties and perused the record from them, we find that mobile phones, on examination, were found to be old and used. The contention of the applicant that there mobile phones are capital goods for development of softwares, is not tenable as prima facie, we are of the view that these mobile phones are not capital goods. Therefore, the applicant has failed to make out a case for waiver of pre-deposit of the penalty imposed on them. Accordingly, we direct the applicant to make a pre-deposit of the 50% of penalty imposed on them within four weeks and report compliance on 1 August, 2012. On such compliance, pre-deposit of the balance amount of penalty imposed on them shall stand waived and recovery thereof stayed during the pendency of the appeal.

Decision:-Stay partly granted

Comment:-  In this case, the appellant has imported mobile phones and such mobile phones are not capital goods for them. On the examination, they were found to be old and used. Therefore, they violated the EXIM Policy and so they were ordered to pre-deposit 50% of the penalty under section 112 (a) of Customs, 1962.

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