Custom, Excise & Service Tax Tribunal
M/S Vijay Traders vs Commissioner Of Customs Cochin on 12 February, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/257/2007-DB [Arising out of Order-in-Appeal No. 644/2006 dated 28/12/2006 passed by Commissioner of Customs (Appeals), Cochin] For approval and signature: HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s VIJAY TRADERS E5137/1, AMBEDKAR GALI NO.3, EAST BABERPUR, SAHADRA, NEW DELHI 110032. Appellant(s) Versus Commissioner of Customs COCHIN CUSTOM HOUSE COCHIN 682009. Respondent(s)
Appearance:
Shri S. Anand, Advocate # 152, RACE COURSE ROAD, BANGALORE 560001 For the Appellant Shri Pakshi Rajan, A.R. For the Respondent Date of Hearing: 12/02/2016 Date of Decision: 12/02/2016 CORAM :
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 20330 / 2016 PER ASHOK K. ARYA The appellants, M/s Vijay Traders, imported various models of old and used Photocopiers. The Customs authority revised the assessable value of the said goods to Rs. 10,89,909/- as per contemporary prices which was agreed by the importer, M/s Vijay Traders, who are the appellants.
1.1 The Customs department objected to subject imports, they being without submission of valid import licence, citing Para 2.17 of the Foreign Trade Policy, 2004-09, whereunder all second hand goods except capital goods are restricted for import. Customs state that it was clarified by the DGFT vide Circular No. 19 dated 11.11.2003 that second hand Photocopier machines are governed by Para 2.17 of the Foreign Trade Policy, which restricts import of second hand goods without licence. In other words, import licence is required to be submitted for valid import of second hand photocopiers.
1.2. The Customs department (Joint Commissioner) ordered confiscation of these goods (used photocopiers) under Section 111 (d) of the Customs Act, 1962, but allowed redemption on payment of fine (RF) of Rs. 3,00,000/- and imposed a penalty of Rs. 1,50,000/- on the appellants.
1.3. The appellants filed appeal with the Commissioner (Appeals) who upheld the Order-in-Original passed by the Joint Commissioner of Customs.
2. The appellants are now before this Tribunal in appeal. The learned advocate of the appellants, Shri S. Anand has mainly argued as follows :
The appellants submit that the lower authorities have completely overlooked the provisions of the Foreign Trade Policy and the impugned order is opposed to the provisions of the Foreign Trade Policy which clarified there was no restriction whatsoever. In other words, in spite of there being an amendment to Para 2.17 of the FTP by Notification No. 31 (RE-2005)/2004-2009 dated 19.10.2005, the import of second hand photocopiers made by the appellants pertained to period prior to 19.10.2005. Therefore, there was no restriction on import of goods during the relevant period of time. The impugned order is therefore untenable in holding that imported goods in question were restricted in terms of Para 2.17 of the Policy.
The appellants submit that in the light of proper interpretation of Para 1.5 of the Policy, the impugned order is illegal in holding that used photocopier as second hand goods and not second hand capital goods. The issue as to whether second hand photocopier is capital goods or not is no longer res integra. The Larger Bench of the Tribunal in Atul Commodities (P) Ltd. Vs. CC, 2005 (184) ELT 135 (T-LB) has finally concluded the issue. The Larger Bench of the Tribunal held that second hand photocopiers are capital goods within the meaning of Para 9.12 of the Foreign Trade Policy and are freely importable under Para 2.17 of the FTP and are not consumer goods. The amended Para 2.17 post 19.10.2005 is inapplicable in the light of transitional provisions as provided in para 1.5 of the Policy. The impugned order is therefore untenable in law.
The appellants submit that the Larger Bench of the Tribunal in Atul Commodities supra has affirmed the following decisions of the other Benches of the Tribunal, which has held that second hand photocopiers are capital goods and are permissible for import without any licence under the EXIM Policy.
(a) BE Office Automation Pvt. Ltd. Vs. CC, 2004 (171) ELT 460(T)
(b) BE Office Automation Pvt. Ltd. Vs. CC, 2004 (63) RLT 125 (T)
(c) Colour Chem Vs. CC, 1986 (25) ELT 549 (T)
(d) Competent Business Machines Vs. CC, 2005 (182) ELT 426 (T)
(e) Kanga Overseas Vs. CC, 2005 (182) ELT 190(T)
(f) S&S International Vs. CC, CESTAT, Bangalore Benchs Final Order No. 266/2005 dt. 22.2.2005
(g) SKD Commercial vs. CC, 2005 (180) ELT 84 (T).
The impugned order is therefore contrary to the series of the decisions of the Tribunal.
The appellants submit that recently the Bangalore Bench of the Tribunal in the case of Office Devices, Kolkata Vs. CC, Cochin in Final Order No. 1019-1026/2005 dt. 28.6.2005 has held that second hand photocopiers are capital goods and no licence is required for importing the same under the EXIM Policy. Further, the adjudication order confiscating second hand photocopiers under Section 111(d) of the Customs Act, 1962 and also imposition of penalty under Section 112 of the said Act was set aside. The impugned order is therefore untenable in law.
3. The Revenue is represented by learned A.R., Shri Pakshi Rajan. He reiterated the findings and reasonings given in the Order-in-Original and the impugned Order-in-Appeal.
4. All the facts of the case on record and the submissions of both the sides have been carefully examined and considered.
5. We find that the facts of the present case are similar to the case of M/s Office Devices Vs. Commissioner of Customs, Cochin (Customs Appeal No. 320/2007) decided by this Bench of the CESTAT on 22.3.2013 wherein the Honble Supreme Courts decision in the case of Atul Commodities Pvt. Ltd. Vs. Commissioner of Customs, Cochin [2009 (235) E.L.T. 385 (S.C.)] has been cited to hold that the subject goods were not liable to confiscation under Section 111(d) of the Customs Act, 1962.
5.1. Considering the Tribunals decision in the case of M/s Office Devices (supra) and the Honble Apex Courts decision in the case of Atul Commodities Pvt. Ltd. (supra), where the facts are similar to the present case, there can only be one conclusion that the confiscation ordered by the Customs under Section 111(d) of the Customs Act, 1962, is not legal and redemption fine and penalty imposed under Section 112 of the Customs Act, 1962, therefore, is hereby set aside.
6. In view of the above discussion, the appeal is allowed with consequential relief to the appellants.
(Operative portion of the order was pronounced in open court on 12/2/2016) (ASHOK K. ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER /vc/