ORDER
Gowri Shankar, Member (T)
1. The appellant placed an order with System Software Associates, France S.A. for supply of software at a price of US $ 83700. The software contained in floppy discs was dispatched to the appellant by courier from the supplier in United States of America. The package containing floppy discs was accompanied by invoice showing their value to be US $ 24.01. The courier paid the duty assessed from this value, cleared the goods from Customs and delivered them to the appellant/ who received the amount on 9-11-1996. It is stated that the package was not opened before 13-1-1996 as the concerned department of the appellant was closed on account of Diwali. On opening the package and examination of the floppy/ it found to contain software. It is further stated that on 15-11-1996, the appellant addressed a letter to the Assistant Commissioner, Air Cargo Complex, Sahar, narrating the facts and requesting for reassessment of the value. It further stated that the department has also asked the appellant to contact the International Airport Authority of India, Customs terminal authorities where the goods cleared by the courier would have been assessed to duty. There was some further delay in the matter. On 27-11-1996, the appellant’s representative contacted the customs officers. The department thereafter recorded the statement of the employees of the appellant and issued notice demanding duty and proposing penalty. The Commissioner has confirmed the demand for duty and imposition of penalty of Rs 1 lakh on the appellant. The appeal is against the penalty imposed on the appellant.
2. The contention of the representative of the appellant is that the initial clearance by the courier (at a much lower value) was not at its behest or within its knowledge. Subsequently, as soon as it came to know of the correct position, it attempted to contact the department in order to have the goods correctly assessed to duty.
3. The Commissioner has declined to consider this plea on the ground that it was only its compulsion of filing a bill of entry which was required to be produced before the Reserve Bank of India for the remittance to be furnished of the payment for the goods that made the appellant to contact the customs authorities and this is the argument that the departmental representative emphasises.
4. It is no doubt true, as the departmental representative contends that, in his statement of 3-12-1996 A.B.S. Many, manager of the appellant stated that the Reserve Bank of India insists upon the assessed bill of entry before the remittance can be permitted. However, in the same statement Many has said that shortly after the goods were declared, the appellant’s representative went to the Air Cargo Complex on 18-11-1996 and he was directed to his clearing agent or to the passenger terminal. The appellant is a manufacturer of pharmaceutical products and would have been importing goods from time to time. The fact of requirement of an assessed bill of entry before remittance could be permitted would have been known to it in the normal course of its business, without it being specifically mentioned in this case by the Reserve Bank of India. The appellant has also produced before us a copy of the letter dated 15-11-1996 addressed to the Assistant Commissioner, Air Cargo Complex, requesting for reassessment of the consignment and permission to file a bill of entry. No doubt, no acknowledgement is obtained. However, this letter in conjunction with the statement of Many, which is not rebutted impels us to extent the benefit of doubt in this matter to the appellant with regard to penalty.
5. The appeal is accordingly allowed and the impugned order imposing penalty set aside.