Custom, Excise & Service Tax Tribunal
Bedy Associates vs C.C.C., New Delhi on 22 December, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing: 16.11.2016 Date of pronouncement:22/12/2016 Custom Appeal No.53529 of 2015 Arising out of the order-in-original No.CC(A)/CUS/D-II/ICD/889/2015 dated 24.6.2015 passed by Commissioner of Customs (Appeals), New Delhi. Bedy Associates .. Appellant Vs. C.C.C., New Delhi Respondent
Appearance:
Present Shri K.K. Sharma, Advocate for the appellant Present Shri K. Poddar, A.R. for the Revenue Coram: Honble Mrs. Archana Wadhwa, Judicial Member Honble Mr. V. Padmanabhan, Technical Member Final Order No. Per V. Padmanabhan:
The present appeal is directed against the Order-in-Appeal dated 24.6.2015 passed by the Commissioner (Appeals), IGI Airport, New Delhi. The appellant imported old and used digital multi-functional printer from South Korea declared assessable value of the goods as $ 22,165 (CIF) equivalent to Rs.14,25,03/-. The Customs authorities at the point of import found that the goods were imported in violation of the Foreign Trade Policy without specified import licence. The goods were examined by the approved Chartered Engineer who valued the goods at Rs.18,77729/-. The original adjudicating authority took the view that the goods are restricted for imports and requires licence for import of the same. He also enhanced the value to that recommended by the Chartered Engineer. The goods were ordered for confiscation and allowed to redeem on payment of redemption fine and penalty to the extent of Rs.1,77,000/- and Rs.18,000/- respectively. When appeal was filed against this order, the Commissioner (Appeals) upheld the same in the impugned order. In the present appeal, the appellant has challenged the enhancement of value as well as confiscation of the goods.
2. We have heard Shri K.K. Sharma, ld. Advocate for the appellant as well as Shri K. Poddar, ld. A.R. on behalf of Revenue.
3. The goods stand imported under para 2.17 of the Foreign Trade Policy 2009-2014 which reads as follows:
all second hand goods, except second capital goods, shall be restricted for import and may be imported only in accordance with the provisions of the FTP ITC (HS), HBP Vol.1, Public Notice or an Authorisation issued in this regard. Import of second hand capital goods, including refurbished/re-conditioned spares shall be allowed freely. However, second hand personal computers/laptops, photocopier machines, air conditioners, diesel generating sets will only be allowed against a licence. Import of re-manufactured goods shall be allowed only against a licence. It is not disputed that the goods i.e. old used digital and multi-functional printer are second hand goods. In terms of the Foreign Trade Policy as above, the goods need an import licence from DGFT for importation since such import licence has not been submitted at the time of import, the goods are liable for confiscation in terms of Section 111 (d) of the Customs Act, 1962, as held by the authorities below. The fact that the importer has managed to get NOC from Ministry of Environment and Forest does not waive the requirement of import licence. The goods imported are in the nature of second-hand goods. The valuation of the goods has been done in terms of the Board Circular No.4/2008-Customs dated 12.2.2008. The nature of the goods is such that the valuation will have to be decided on case to case basis after examining the goods from the point of view of year of manufacture , the present condition of the machinery, expected life span etc.Since it is impossible to find identical contemporaneous import in the case of second-hand equipment, the fixing of price on the basis of the opinion of the Expert Chartered Engineer cannot be faulted with. The Honble Apex Court in the case of Gajra Bewal - 2000 (115) ELT 612 (SC) has upheld the valuation of second-hand machines by taking recourse to Chartered Engineer certificate.
3. We have also held that the goods are liable for confiscation and hence are to be released only on payment of redemption fine and penalty. The appellant in the appeal has submitted that the redemption fine and penalty have been imposed arbitrarily and are exorbitant. They have placed reliance on many case laws including the following to support their argument:
(i) Marque Enterprises vs. C.C. (Preventive), Amritsar 2015 (329) ELT 307 (Tri-Del.)
(ii) H.T. Company vs. C.C., Hyderabad 2007 (208) ELT 507 (Tri-Bang.)
(iii) C.C.E., Delhi vs. Best Mega International 2013 (293 ) ELT 243 (Tri-Del.)
5. We have gone through the above case laws. In the case of Marque Enterprises, the Tribunal has examined various other decisions dealing with import of second-hand photocopiers and has observed that several coordinate Benches have taken a uniform view regarding imposition of redemption fine and penalty to the tune of 10% and 5% respectively. In the facts and circumstances of the case, we are of the view that redemption fine can be reduced to 10% and 5% of the approved value of the goods. We order accordingly. The appeal is disposed of in the above terms.
(Pronounced in the open Court on 22/12/2016) (Archana Wadhwa) Judicial Member (V. Padmanabhan) Technical Member scd/ Appeal No.C/53529/2015 1