ORDER
Ms Jyoti Balasundaram, Member (J)
1. The respondents herein imported photographic and recording equipments for making films/Video films on Yoga activities with the stated purpose of research and propagation of Yoga. They cleared equipments duty free claiming the benefit of exemption notification 70/81 CUS dated 26.3.81 which exempts all scientific and technical equipments, Instruments etc. provided the same are imported by research institutions and provided the research institution furnishes an essentiality certificate from the administrative ministry concerned to the effect that imported goods are essential for research and they will be used only for such purpose by said institution and the said institution is not engaged in any commercial activity.
2. Acting on an intelligence that the importer have been using imported equipments for commercial purpose, officers of the customs department conducted searches of various premises belonging to and/or related to the activities of the importers and seized certain documents and equipments. Investigations revealed that the importers had entered into an agreement dated 25.6.84 with M/s Aparna Studio Pvt. Ltd. a Pvt. Ltd Company having its registered office at A-50 Friends Colony, New Delhi (same address as that of importers). for the stated purpose of making films/video films on yoga activities which would be on account of and to the benefit of the importers, by utilising the studio owned by M/s Aparna Studio Pvt. Ltd. and the equipments imported by M/s Aparna Asharam. Further investigation revealed that M/s Aparna Studio had entered into an agreement with other T.V. producers under which exclusive services of Ms Aparna Studio having airconditioned T.V. Studio at Gurgaon equipped with requisite multi camera, sound and recording equipments etc. together with its full complement of equipments and facilities, were agreed to be provided to T.V. serial producers. The list of T.V. serial producers entered into such agreement included Shri Siddarth Basu (India Quiz) Mrs. Shobha Doctor (Hum Log), Vipin Handa (Amne Samne) and Mahmood Quereshi (Leher Leher Sangeet). Statements of T.V. serial producers were recorded in which they stated that they utilised facilities of Aparna Studio for shooting serials and that equipments installed at Aparna Studio were imported equipments. Statement of Shri Dhirendra Brahmachari founder president of Aparna Ashram was also recorded on different dates and statement of Shri Murli Choudhury, one of the directors of Aparna Studio, was also recorded. On the basis of the above, it appeared that M/s Aparna Studio had never imported any equipments related to photographic and recording facilities, ad that the equipments at Aparna Studio used for making films other than on yoga were the equipments imported by Aparna Ashram at nil rate of duty in contravention of the condition of notification 70/81. Accordingly a show cause notice was issued to Aparna Ashram proposing confiscation of 52 items seized from Aparna Ashram at New Delhi, and six items seized from Aparna Studio, Gurgaon, valued at Rs. 6,72,500/- (duty liability involved – Rs. 12,25,904/-) under Section 111(0) and proposing imposition of penalty under Section 112 of the Customs Act. 1962. The notice was adjudicated by the Collector of Customs who, by the impugned order, dropped the proceedings and directed release of the seized goods to the importers. Hence this appeal by the Revenue.
3. We have heard Shri M.P. Singh, Ld. JDR and Shri J.S.Agarwal, Ld. Adv..
4. We find that under the agreement dated 25.6.84 between Ms Aparna Ashram and M/s Aparna Studio, the importers wanted to have complete facilities of studio for the purpose of making films/video films on all aspects of yoga including research activities and they agreed that the studio should be established and owned by M/s Aparna Ashram and that the importers will finance, own and install the equipments required for such studio. Under the terms and conditions of agreement dated 23.3.89 between M/s Aparna Studio and M/s Synergy Communications Pvt. Ltd. (Producers of T.V.Quiz series titled India Quiz 1900-88) Aparna studio was to provide the following facilities, services and equipments to the T.V. serial producers:
a) Their air-conditioned studio floor at Gurgaon alogwith the control room, a complement of make-up etc.
b) A full range of T.V. studio lights of atleast 60 KW capacity including hard-softs, multi-twenties, colortranes, solar bulbs etc.
c) 3 DXC M3 Cameras, each with a camera control unitand tripod, equipped with studio conversion kits, DR-100 talk backs and accessories such as cables, power adaptors and batteries.
d) Control consol consisting of 2 Nos., m 5850 video tape-recorder, 9 colour video monitors, Director 2000 SEG switcher and WEX wipes machine.
e) 5 lapel microphones, suspension microphones, standing microphones, 1 six rack multichannel audio-mixer, PA system and foldback, together with cables and other accessories.
f) Uninterrupted power supply for the above equipment, lights and air-conditioning plants, during any period of shooting or lighting.
5. In another agreement between M/s Aparna studio and M/s Time and Space Video Communication, M/s Aparna Studio was to make studio available for shooting of all the episodes of the T.V. serial ‘Humlog’. Similar agreements were entered into by M/s Aparna studio with other T.V. Serial producers. Shri Siddarth Basu Director of T.V. Serial “India Quiz” has stated that for the recording of serial, video recording equipment for multi camera shoot in Aparna studio was utilised and as far as he could remember video equipment at Aparna studio was of Sony make. Shri Mahmood Qureshi Director of the T.V. serial “Leher Leher Sangeet” in his statement dated 11.9.90 stated that serial was recorded in Aparna studio and he was given all the recording facilities such as 3 cameras production control room, Audio console and editing machines and that the equipments included Sony M-3 camera and compatible complements of other equipments of U-matic format which were imported. Shri Vipin Handa, Director of T.V. serial “Amne Samne” has also stated that for shooting at Aparna studio all facilities were provided by the studio and included 3 M-3 Sony Cameras, Audio Console were imported equipments. It comes out from the above that imported equipments were installed in Aparna Studio which were used for recording of commercial serial i.e. other than films/video films on yoga. The respondents have not shown that Aparna studio either imported any photographic or video graphic equipments for installation in its studio which were hired by producers of T.V. serials or that it has installed any indigenous equipments in its studio. In fact Shri Murli Choudhury one of the directors of Aparna Studio has deposed in his statement recorded on 23.8.90 that Aparna studio did not have nay recording equipments of its own and that Aparna studio had also not imported any equipments for recording films/video films. Although he specifically revised his earlier statement by stating that all the equipments needed for shooting of T.V. serials were brought by the teams shooting serials themselves, his statement dt 23.8.90 is corroborated by T.V. serial producers and is therefore, a valid piece of evidence which can be relied upon. Further we note that in his statement dated 28.8.90 Shri Dhirendra Brahmachari has stated that equipments imported by Aparna Asharam were used by Aparna Studio and that Aparna Studio utilised the equipments for the purpose of making films on yoga, and these equipments were also used by Aparna studio for making other type of films. (emphasis supplied). Evidence of Shri Murli Choudhury and statements of producers of T.V. Serials and the agreement referred to earlier clearly points to the use of equipment imported by respondents and installed in Aparna studio for making commercial serials (in addition to making of films on yoga) Therefore, subsequent statement dated 29.8.90 of Shri Dhirendra Brahmchari in which he stated that equipment imported by Aparna Ashram was used only for research purpose in yoga and equipments of Indian Origin which were lying in Aparna studio were used for making other types of films, is nothing but an after thought, which is required to be dis-regarded.
6. In the light of the above discussion we hold that the evident on record is sufficient to prove that the respondents had violated the condition of the notification 70/81 and that therefore, the seized items are liable to confiscation under section 111(0) of the customs Act. We however, offer the respondents option of redemption of the seized goods on payment of fine of Rs. 2 lakhs. Penal action in terms of Section 112 is also justified for the above contravention, we therefore, impose a penalty of Rs. one lakh upon respondents. Thus impugned order is set aside and appeal of the Revenue allowed as above.