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At times, music too has to face the music
July, 15th 2006

"If music be the food of love, play on," urges Duke Orsino in Twelfth Night. But play, you can't with the taxman, even when the tunes are right. Take for instance a musical case the came up before the Tribunal recently, Walter Traders vs The Commissioner of Customs.

The story begins with Walter filing a shipping bill for the export of goods declared as "Joint shamisen musical instruments parts made out of red sanders wood in 2874 Nos. valued at $1,29,330 equivalent to Rs 57,68,118."

What is Samisen, or shamisen? It is a Japanese fretless plucked string instrument with three strings, originally used by street singers and geishas, explains Encarta. "The Britannica Encyclopaedia describes the same as instrument with long-necked fretless Japanese lute with three strings, a small square body with cat skin front and back and a curved-back peg-box with side pegs," is a snatch from the text of the Tribunal's order dated March 1.

"Sometimes referred to as the `Japanese guitar,' its construction and appearance more closely resemble the banjo with its sound retaining its own unique resonance and special traditions," educates www.arts.iup.edu. It speaks of `Tsugaru shamisen', which conveys well `the heart and soul of the Japanese'. Tsugaru is a region in the northern part of Japan, informs http://tikuyu-shamisen.com. "Because of the heavy snowfall and painful long winter, Tsugaru people were in need of music as an emotional relief to struggle with severe life there," it adds, even as you can hear the strums on the site.

Samisen was derived from the similar Chinese san-hsien, the Ryukyu Islands version of which reached Japan in the 16th century, informs www.britannica.com. "It is widely played in folk and art music as an accompaniment to lyric and narrative song and in the orchestra of bunraku (puppet) and kabuki dramas."

A soft rendition of samisen should give you a taste of `wabi and sabi' theme of the Japanese, because that is how `feelings and passion can be expressed in peaceful tranquillity and stillness,' as www.arts.iup.edu enlightens. Much `like softest music to attending ears,' as says Romeo.

But, music, at times, may have to face a different music, especially when there are Jessicas of The Merchant of Venice around saying, "I am never merry when I hear sweet music." The taxman was no different. For, in Walter's case, the Department officials confiscated the logs of wood, on the ground that they were `prohibited goods'. They slapped a penalty of Rs 5 lakh on the firm and Rs 2 lakh on the managing partner. "When such strings jar, what hope of harmony?" you may fret, as Shakespeare writes in King Henry VI. Read on.

Walter submitted many documents. Such as: Export licence issued by DGFT (Directorate General of Foreign Trade), Hyderabad, for the export of `joint shamisen musical instrument parts made out of red sanders wood'; certificate of origin issued by the Principal Chief Conservator of Forests, indicating the origin of goods, quantity and value as above and permitting them to export; stock possession certificate issued by the Divisional Forest Officer, Nalgonda; transit permit issued by the Forest Range Officer, Choutuppal, for transporting the goods from exporter's warehouse at Nalgonda to ICD (inland container depot), Hyderabad; purchase contract entered into between Walter and Radeep Services, Singapore; and invoice and packing list along with the shipping bill.

"The officers of Customs, ICD on verification observed that the description of goods mentioned in the shipping bill did not tally with that in the transit permit and found some other discrepancy," noted the Tribunal, narrating the facts. "The examination of the goods show that they are presented for export in irregular shapes, sizes and not properly worked on them, many of them with holes and cracks and do not appear to be as a part of the shamisen instrument," is more about the verification by the Special Investigation and Intelligence Branch (SIIB) of the Department.

Though the transit permit issued by the Forest Department described the goods as "dressed material of red sanders for shamisen musical parts," the Forest Officer had written on the back of the shipping bill that the goods were rough squared and trimmed logs of red sanders. SIIB said that it had a reasonable belief that roughly trimmed logs of red sanders were being attempted for export in the guise of parts of musical instruments in violation of the provisions of Customs Act, 1962 read with EXIM policy 2002-2007, and so were liable for confiscation.

At the Tribunal, M. S. Rajappa argued for Walter and said that the company had specific orders for supply of parts of shamisen instruments. "The rough logs were dressed and brought to a particular shape. These dressed logs were nothing but parts of joint shamisen musical instruments," he said. There was no intention to smuggle out red sanders wood, he added.

"The activity of manufacture of polishing the logs to bring it to a particular shape was well known to the Forest Officers and they have certified the same," pointed out Rajappa. He contended that it was only a difference of opinion between the Customs and the Forest Departments, which had resulted in the seizure of the goods. Mere difference of opinion could not be considered as a case for absolute confiscation and for imposition of penalty, as there was nothing on record to show that Walter had attempted to ship prohibited goods in the guise of musical instrument parts, said Rajappa.

For the Department, it was Ganesh Havanur who spoke at the Tribunal, before the Members, T. K. Jayaraman and S. L. Peeran. What did they say, after hearing the arguments and inspecting the wood pieces in question? "On a careful consideration, we are of the considered opinion that the item has not yet acquired the shape of a musical part," they said. "A part is complete by itself and it is not in the nature of the irregular shaped logs... We reject the contention that the item in question has acquired the characteristic of part of the said musical instrument," reads the text of the Tribunal order.

If that fills you with melancholy, please don't give up, as yet. "The Revenue has not established that the appellants have attempted to ship prohibited red sanders wood against the provisions of policy although the item has not acquired the shape of parts," said the Tribunal. "We hold that there was no attempt made by the exporter or the managing partner to abet or commit any offence and hence, absolute confiscation cannot be done in the matter." Accordingly, the Tribunal set aside the penalty on Walter and allowed the firm to redeem the goods on payment of redemption fine.

Tailpiece

"Terrorists are a tax on humanity!"

"Something that we have to live with?"

D. Murali

 
 
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