What Are the Penalties for Importing Wireless Devices Without WPC Approval?

[Tile box]

Importing wireless devices into India without an Equipment Type Approval (ETA) from the Wireless Planning and Coordination Wing (WPC) is a criminal offence under Section 3 of the Indian Wireless Telegraphy Act, 1933. The goods are liable to seizure and forfeiture. The importer is personally liable to prosecution with penalties including fine and imprisonment. This is not a civil compliance matter with a monetary exit. Non-compliance attracts prosecution.

What are the penalties for importing without WPC approval?

Section 3 of the Indian Wireless Telegraphy Act, 1933 (IWTA) creates penalty provisions for importing wireless devices without WPC Equipment Type Approval making it unlawful to possess, use or deal in wireless telegraphy apparatus without a licence issued under the Act. 'Dealing in' is broad enough to encompass import, sale and distribution. Section 6 of the IWTA provides for the penalties applicable to contraventions including fine and imprisonment. The goods themselves are subject to confiscation under the provisions of the Act.

The Indian Customs Act, 1962 operates as an additional enforcement layer at the port. Section 111 of the Customs Act, provides for confiscation of goods imported in contravention of any prohibition imposed by or under any law, including the IWTA, for the time being in force. The Customs authorities have independent statutory authority to seize and confiscate the goods, separate from and in addition to the penalty provisions of the IWTA itself.

An importer of wireless goods without ETA faces potential criminal prosecution under the IWTA, confiscation of goods under both the IWTA and the Customs Act and customs duty and other levies. Each shipment without an ETA is a separate violation.

The implications for businesses

The commercial arrangements of Foreign manufacturers supplying wireless products to Indian importers or distributors does not insulate them from the consequences of ETA non-compliance.

If the Indian importer is prosecuted under the IWTA, the manufacturer's role in supplying non-compliant goods is part of the evidentiary record. Manufacturers who represent that their products are ‘approved for India’ without an ETA in hand does not vitiate the non-compliance risks.

Importers who have been bringing wireless goods into India without ETA should not defer a compliance audit on the grounds that they have not yet been caught. The risk accumulates with each shipment.

How WPC approval protects against these penalties

An importer with a valid ETA for each wireless product model in a consignment can present the ETA certificate to Customs at the time of query and demonstrate compliance. Customs will verify the validity of ETA corresponding to specific goods against the SARAL Sanchar portal records (https://eservices.dot.gov.in/saral/lists-license-portal) and clear the consignment accordingly. A letter from a foreign certification authority, a copy of an Federal Communications Commission (FCC) or Conformité Européenne (CE) approval or a supplier's declaration of conformity do not substitute for an Indian ETA.

Importers who discover mid-shipment that ETA is missing or expired may hold the goods at origin if they have not yet shipped. In transit, the importer should assess whether ETA can be applied for and obtained before the vessel arrives. Upon arrival at the ports without an ETA, the importer must choose between attempting to re-export or facing detention pending a legal process. There is no in-situ regularisation mechanism that allows a detained shipment to be released on payment of a fine while ETA is pending.

Legality and risks

Section 3 of the IWTA and Section 111 of the Customs Act, 1962 together create a robust enforcement framework. In customs proceedings, the importer has an opportunity to show cause, upon a notice issued within six months (reasonably extendable by another six months by the Commissioner of Customs) from the date of seizure, why the goods should not be confiscated. The burden is on the importer to demonstrate that the goods do not fall within a prohibited import category, only to be discharged with a valid ETA certificate.

The commercial non-recoverable risks run beyond direct legal penalties and include relationship damage with Indian buyers who received no delivery, loss of the commercial value of detained or confiscated goods, reputational damage in the trade community and the administrative burden of dealing with enforcement proceedings while conducting normal business.

Indian importers carry the front-line legal exposure for ETA violations at the point of import. A sole proprietor importer faces personal criminal liability. A company importer exposes its directors and officers to personal liability in addition to the company's liability, because IWTA offences and Customs Act violations can ground prosecutions against individuals responsible for the conduct of the business.

Word of counsel

Importers are advised not to underestimate the non-compliance penalties. Even after the free period, typically three to five days, at a major Indian port, when container demurrage begins accruing, it can reach significant amounts per container per day within weeks. An ETA dispute and the legal proceedings emanating therefrom may take two to three months to resolve. The accumulated demurrage costs can exceed the value of the goods. Clearance, re-export and the cost of keeping them at the port becomes unviable.

ETA application fees are modest relative to the commercial value of most wireless product shipments. Laboratory testing costs, while more substantial, are a fraction of the demurrage, storage, legal fees and commercial loss that a detained shipment generates.

Have a question about a specific product or regulation? Speak to an expert at accessindiaplatform.com