Custom, Excise & Service Tax Tribunal
The Commissioner Of Customs, Cochin vs No.3/2013 Dt.9.4.2013 on 2 January, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeals (s) Involved: Sl. No. Appeal No. Appellant Respondent
Order-in-Original 1 C / 27178 / 2013 M/s. N V Associates 1/A, Iswar Choudhury Road, Kolkatta 700 029.
West Bengal.
The Commissioner of Customs, COCHIN.
No.3/2013 dt.9.4.2013 2 C / 26958 / 2013 M/s. Atul Automation Pvt. Ltd.
8, Bentick Street, Kolkatta 700 001.
West Bengal
-do-
No.26/2012 dt.22.3.2013 3 C / 27179 / 2013 N V Associates 1/A, Iswar Choudhury Road, Kolkatta 700 029.
West Bengal.
-do-
No.2/2013 dt.9.4.2013 4 C / 25773 / 2013 M/s. Atul Automation Pvt. Ltd 8, Bentick Street, Kolkatta 700 001.
West Bengal
-do-
No.21/2012 dt.10.12.2012 5 C / 20845 / 2014 M/s. G.S. Infotech B-122/F1 Shalimar A Garden, Extension-2, Gaziabad. UP
-do-
No.COC-CUSTM-000-COM-052-12-13 dt.12.11.2013 6 C / 21266 / 2014 M/s. G.S. Infotech B-122/F1 Shalimar A Garden, Extension-2, Gaziabad. UP
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No.COC-CUSTM-000-COM-063-12-13 dt.13.12.2013 7 C / 21432 / 2014 M/s. H. D. Associates N-8/236A, 4 Newada Sunderpur, Varanasi.
-do-
No.COC-CUSTM-000-COM-061-12-13 dt.12.12.2013 8 C / 21433 / 2014 M/s. G.S. Infotech B-122/F1 Shalimar A Garden, Extension-2, Gaziabad. UP
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No.COC-CUSTM-000-COM-061-12-13 dt.20.12.2014 9 C / 22728 / 2014 M/s. Parag Enterprises 8, Amartalla Street, 4th Floor, Room No.408, Kolkatta 700 001.
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No.COC-CUSTM-000-COM-014-14-15 dt.27.6.2014 10 C / 27606 / 2013 M/s. N V Associates 1/A, Iswar Choudhury Road, Kolkatta 700 029.
West Bengal.
-do-
No.9/2013 dated 29.5.2013 11 C / 21900 / 2014 M/s. G. S. Infotech 138, GT Road, Shree Apartment, Block-B, 10th Floor (South), Dist. Howrah West Bengal 711 102.
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No.COC-CUSTM-000-COM-074-12-13 dt.26.2.2014 [Arising out of Orders-in-Original (as mentioned in the table above) passed by the Commissioner of Customs, Cochin.] Appearance:
Mr. P.A. AUGUSTIAN ADV FAIZEL CHAMBERS, PULLEPADY CROSS ROAD, COCHIN 682 018 KOCHI (Kerala) For the Appellant Mr. Pakshirajan, Mr. N. Jagadish, Ms. Kavitha Podwal, ARs For the Respondent Date of Hearing: 28.12.2017 Date of Decision: 02.01.2018 CORAM:
HON'BLE SHRI S.S. GARG, JUDICIAL MEMBER Final Order No. _20004 - 20014 / 2017 Per : S.S. GARG The appellants have filed these 11 appeals against the different impugned order passed by the Commissioner of Customs vide which the Commissioner has rejected the valuation done by the appellant and directed that the valuation be done on the basis of Chartered Engineer certificate under Rule 9 of the Customs Valuation (Determination of value of imported goods) Rules, 2007. The Commissioner has also imposed redemption fine and penalties.
2. Since the issue in all the 11 appeals is more or less identical, therefore, all the appeals are being disposed of by this common order.
3. The details of all the 11 appeals are given herein below:
Sl. No. Appeal No. Appellant Bill of Entry No./date Redemption Fine Penalty 1 C / 27178 / 2013 M/s. N V Associates 1/A, Iswar Choudhury Road, Kolkatta 700 029. West Bengal.
9625543 dated 20.3.2013 Rs.2,00,000/-
Rs.4,00,000/-2
C / 26958 / 2013 M/s. Atul Automation Pvt. Ltd. 8, Bentick Street, Kolkatta 700 001. West Bengal 9294087 dt.12.2.2013 Rs.8,00,000/-
Rs.4,00,000/-3
C / 27179 / 2013 N V Associates 1/A, Iswar Choudhury Road, Kolkatta 700 029. West Bengal.
9591950 & 9591951 dt.16.3.2013 Rs.6,00,000/-
Rs.3,00,000/-4
C / 25773 / 2013 M/s. Atul Automation Pvt. Ltd 8, Bentick Street, Kolkatta 700 001. West Bengal 8485668 & 8485705 dt.15.11.2012 Rs.8,00,000/-
Rs.4,00,000/-5
C / 20845 / 2014 M/s. G.S. Infotech B-122/F1 Shalimar A Garden, Extension-2, Gaziabad. UP 3618163 dt.23.10.2013 & 3636168/3639372 DT.25.10.2013 Rs.10,00,000/-
Rs.3,50,000/-6
C / 21266 / 2014 M/s. G.S. Infotech B-122/F1 Shalimar A Garden, Extension-2, Gaziabad. UP 3723057/3727346 dt..6.11.2013 & 3819203 dt.16.11.2013 Rs.15,00,000/-
Rs.5,00,000/-7
C / 21432 / 2014 M/s. H. D. Associates N-8/236A, 4 Newada Sunderpur, Varanasi. 3960481 dt.2.12.2013 Rs.3,00,000/-
Rs.1,00,000/-8
C / 21433 / 2014 M/s. G.S. Infotech B-122/F1 Shalimar A Garden, Extension-2, Gaziabad. UP 3947800 dt.29.11.2013 Rs.3,00,000/-
Rs.1,00,000/-9
C / 22728 / 2014 M/s. Parag Enterprises 8, Amartalla Street, 4th Floor, Room No.408, Kolkatta 700 001. 5434837 dt.8.5.2014/ 5498246 dt.15.5.2014; 5564224 dt.21.5.2014 Rs.15,00,000/-
Rs.6,00,000/-10
C / 27606 / 2013 M/s. N V Associates 1/A, Iswar Choudhury Road, Kolkatta 700 029. West Bengal.
9695147 dt.28.3.2013 Rs.6,00,000/-
Rs.3,00,000/-11
C / 21900 / 2014 M/s. G. S. Infotech 138, GT Road, Shree Apartment, Block-B, 10th Floor (South), Dist. Howrah West Bengal 711 102. 4282570 dt.7.1.2014/ 4441491 dt.24.1.14/ 4441783 dt.24.1.2014 Rs.11,00,000/-
Rs.5,00,000/-
4. For the sake of convenience, the facts of the appeal No. C/27606/2013 are taken.
4.1 Briefly the facts of the case are that the appellant filed Bill of Entry No.9695147 dated 28.3.2013 for clearance of goods declared as old and used digital multifunctional printer through their CHA M/s. Ajay Overseas Shipping with a declared value of Rs.29,82,983/- for 245 units. They have also produced the certificate issued by the Ministry of Environment and Forests, New Delhi which has granted the certificate subject to certain conditions. The invoice did not contain any details like year and country of manufacture, whether reconditioned or refurbished, etc. In the absence of these details, there were doubts raised by the Department regarding the genuineness of the declared value and therefore, the consignment was examined with representative from Chartered Engineer who valued the 247 pieces at the rate of USD 63,610 (C & F) as against USD 53,150 (C & F) declared and the total assessable value on the basis of Chartered Engineer recommended price worked out as Rs.35,70,039/-. The allegation of the department was that the said import was in violation of the Foreign Trade Policy (FTP) as well as there is an undervaluation on the part of the appellants.
5. The learned counsel for the appellant submitted that in the present appeals, appellants are not challenging the valuation. They have accepted the valuation done by the Chartered Engineer and accordingly, paid the duty and further, they are only challenging the imposition of redemption fine and penalty in all these cases. He further submitted that the items under import are used digital multifunctional print and copying machines and undisputedly, falls under second-hand capital goods category. He further submitted that Chapter 2.17 of the Current Foreign Trade Policy which came into effect from 5.6.2012 mentioned the conditions for import of second-hand capital goods and that used digital multifunctional machines fall in restricted category and as per the Policy, they are freely importable. He further submitted that the Honble High Court of Madurai in Writ Petition No.12268 12270 of 2012 dated 17.9.2012 have allowed the free import of second-hand capital goods. He further submitted that the decision of the High Court of Madurai has been upheld by the Division Bench of the Madras High Court in appeal No.14095/2013 filed by the Department. He also submitted that on 28.2.2013, DGFT has amended Para 2.17 of the Policy vide Notification No.35/2013 dated 28.2.2013 and vide PN No.50 dated 28.2.2013 vide which para 2.33 of Hand Book of Procure (HBP) Vol.-I has been deleted.
6. On the other hand, the learned AR defended the impugned order and he submitted FTP has been amended from 28.2.2013 and after the amendment the impugned goods have been put in the category of restricted goods for which separate license is required. He further submitted that the Division Bench of Madras High Court in the case of CCE vs. City Office Equipment as reported in 2014 (302) ELT 212 has held that up to 28.2.2013, there was no restriction on import of subject goods. He further submitted that the decision of the Madras High Court has been followed by the Division Bench of this Tribunal in the case of Commissioner of Customs vs. Bhavani Enterprises reported in 2017 (353) ELT 234 wherein the Tribunal has also held that prior to 28.2.2013 there was no restriction and any import after 28.2.2013 is subject to license which can be procured from the DGFT.
7. After considering the submissions of both the parties and perusal of the material on record and the judgment of the Madras High Court as well as that of the Tribunal, I find that amendment made in the FTP on 28.2.2013 has mandated that these impugned items can only be imported after obtaining a license and in the present cases, the appellant had not obtained the license for importing the impugned goods. Further, I find that out of 11 appeals, in two appeals viz., C/25773/2013 and C/26958/2013, the Bill of Entry was filed on 15.11.2012 and 12.2.2013 which is prior to the amendment of FTP dated 28.2.2013. Since the issue is no more res integra and has been settled by the Madras High Court and subsequently, followed by the Tribunal in the case of Bhavani Enterprises cited supra, I am of the considered view that except in two appeals viz., C/25773/2013 and C/26958/2013, and in all other 9 appeals, the import is after the amendment and therefore, the import is in violation of the Policy and therefore, I find that there is no infirmity in the impugned order imposing redemption fine and penalty. Therefore, I dismiss these 9 appeals and allow only two appeals of M/s. Atul Automation Pvt. Ltd. (C/25773/2013 and C/26958/2013) by setting aside the impugned orders in these two appeals with consequential relief, if any.
8. Consequently, all the appeals are disposed of in above terms. (Order was pronounced in open court on 02.01.2018.) S.S. GARG JUDICIAL MEMBER rv C/27178/2012 & 10 Others 9 C/27178/2013 & 10 Others 1