Custom, Excise & Service Tax Tribunal
C.C.E, Delhi (Icd, Tughlakabad) vs M/S. Best Mega International on 21 March, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, NEW PRINCIPLE BENCH, NEW DELHI
COURT NO. 1
Date of Hearing/Decision: 21.03.13
Appeal No. C/3810/2012-CU(DB)
C.C.E, Delhi (ICD, Tughlakabad) Appellants
Vs.
M/s. Best Mega International Respondent
(Arising out of the Order-in-Appeal No.CC(A)CUS/ICD/320/2012 Dated 09.08.2012, passed by the Commissioner of Custom (Appeals), New Custom House, New Delhi) Hon'ble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical)
1. Whether Press Reporters may be allowed to see the :
Order for publication as per Rule 27 of the CESTAT (Procedure) Rule, 1982?
2. Whether it would be released under Rule 27 of :
the CESTAT (procedure) Rule, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair :
Copy of the order?
4. Whether order is to be circulated to the Department :
Authorities?
Appearance Sh. V.P.Batra, AR - for the Appellant Sh. Priyadarshi Monish, Advocate - for the Respondent FINAL ORDER NO:- 55993/2013 Per Rakesh Kumar:-
The facts leading to filing of this appeal are, in brief, as under:-
1.1. The Respondent imported a consignment of old and used Canon Digital Multifunction Printing and copying Machines and filed Bill of Entry No. 5503076 dtd. 19.12.2011 for its clearance by classifying the goods under tariff heading 84433990 of the Tariff. While the Respondent claims that the goods imported are different from Photocopier Machine and hence are freely importable without licence, the Department was of the view that the goods imported are second hand Photocopies Machines and since at the time of import, second hand Photocopies Machines were restricted for import and could be imported only against import licence and since no import licence has been produced, the import is in contravention of the Foreign Trade Policy 2009-14 and hence the goods are liable for confiscation under section 111(d) of the Customs Act, 1962. According to the Department the cleared value of the second hand machines was also on lower side and that the same is Rs. 34,92,576/- as against the declared value of Rs. 31,83,127/- and hence the goods are also liable for confiscation under section 111(m) ibid. Accordingly after issue a Show Cause Notice, the Jurisdictional Additional Commissioner vide order-in-original dtd. 23.12.2011 enhanced the CIF value of the goods to Rs. 34,92,576/-, ordered confiscation of the goods under section 111(d) and 111(m) of the Customs Act, 1962, for import without licence and mis-declaration of the value, with an option to the Respondent to redeem the same on payment of redemption fine of Rs. 6,25,000/-. Besides this, he also imposed penalty of Rs. 5,90,000/- on the Respondent under section 112(a) of the Custom Act, 1962.
1.2. On appeal being filed against the Additional Commissioners Order, the Commissioner (Appeals) vide order-in-appeal dt.09.08.2012 set aside the Additional Commissioners Order and allowed the appeal on the grounds that;
(a) the goods imported- second hand Digital Multifunction printing and Copying Machines are different from Photocopier Machines and, hence, were not restricted for import at the time of shipment; and
(b) there is no apparent reason for rejecting the declared CIF value of the goods.
1.3 Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue.
2. Heard both the sides.
3. Sh. V.P.Batra, learned Departmental Representative assailed the impugned order by reiterating the grounds of appeal in the Revenues appeal and pleaded that during the period when this import had been made, the import of second hand Photocopier Machines was restricted and could be made only against the import licence, that the goods imported old and used Digital Multifunction Printing and Copying Machines are nothing but old and used photocopier machines and hence the same were restricted items, that in this regard he relies upon the judgment of the Tribunal in the case of Commissioner of Customs, Chennai Vs. Jay Dev Industries reported in 2012 (279) ELT-375 and also in the case of Unitech Enterprises Vs. Commissioner of Customs reported in 2012 (279) ELT-236, wherein it was held that Multifunction Printing and Copying Machine is essentially a Photocopier Machine and hence the import of old and used digital Multifunction Printing and Copying Machines was restricted since 19.10.05 in terms of para 2.17 of the Foreign Trade Policy, that Apex Court has also in the case of Atul Commodities Pvt. Ltd. reported in 2009 (235) ELT-385 (S.C.) held that the import of photocopier machines was restricted since 19.10.2005, that in view of this, the impugned order holding that the old and used Digital Multifunction Printing and Copying Machines were freely importable is not correct, that Commissioner (Appeals)s observation with regard to valuation of the goods is also not correct, as the actual value of the goods as certified by the Chartered Engineer on the basis of the residual life of the machines is Rs. 34,92,576/- as against the declared value of Rs. 31,83,127/- and hence the assessable value has been mis-declared and that in view of the above submissions, the impugned order is not correct.
4. Sh. Priyadarshi Monish, Ld. counsel for the respondent, pleaded that the goods imported are Digital Multifunction Printing and Copying Machines classifiable under sub heading 84433100 of the Tariff and the same are different from the electrostatic photo copying machines covered by sub Heading 84433930, that it is the old and used electrostatic photo copying machines which were restricted for import that the import of old and used Digital Multifunction Printing and Copying Machines became restricted w.e.f. 05.06.2012 by including these machines also in para 2.17 of the Foreign Trade Policy, that from the Minutes of the Meeting of Technical Review Committee held in the Ministry of Environment and Forests on 16.11.2011, which have been obtained by the Respondent under Right to Information Act, it is clear that the Government also recognizes the fact that there are separate ITC (HS) codes for Digital Multifunction Printing and Copying Machine and Photocopier Machine and accordingly a decision was taken to include the import of second hand Multifunction Printing and Copying Machines also in the restricted list, that since the old and used Multifunction Printing and Copying Machines were included in the restricted category by specific mention in para 2.17 w.e.f. 05.06.2012 during the period prior to 05.06.2012, the import of second hand Digital Multifunction Machine was bit restricted, that in this regard he relies upon the judgment of Co-ordinate Bench of the Tribunal in case of Shivam International reported in 2012 (286) ELT- (545) and also the judgment of Honble Madras High Court in the case of Anand Impex reported in 2012(281) ELT-178 (Mad.) wherein, in respect of period prior to 05.06.2012, it has been held that there is no restriction on import of old and used Digital multifunction Printing and Copying Machines, that the Tribunal in the case of Unitech Enterprises (Supra), While taking a view different from the decision of Co-ordinate Bench in the case of Shivam International (Supra) should have referred the matter to a Larger Bench, that in the Tribunals Judgment in cases of Unitech Enterprises (Supra) and Jay Dev Industries(Supra) the judgment of Honble Madras High Court in the case of Anand Impex (Supra) has not been discussed, that merely on the basis of Chartered Engineers Certificate, the declared transaction value can not be rejected when no evidence has been produced by the Department indicating that the declared transaction value is in-correct and that in view of this, there is no merit in the Revenues appeal.
5. We have considered the submissions from both the sides and perused the records.
6. The goods imported are old and used Digital Multifunction Printing and Copying Machines covered by sub-heading 84433100. In terms of the Chartered Engineer Certificate, the remnant life of the machines is more than 5 years and the same are not e-waste fit to be discarded. During the period of dispute, para 2.17 of the Foreign Trade Policy mentions the restricted category of second hand capital goods and the same mentioned only photocopier machines as one of the items which could not be Imported in old and used conditions without an import licence. The term Digital Multifunction Printing and Copying Machines was added in para 2.17 of the Foreign Trade Policy only w.e.f. 05.06.2012. The point of dispute is as to whether during period prior to 05.06.2012, which is the period of dispute in this case, old and used Digital Multifunction Printing and Copying Machines could be imported without licence or not.
6.1 We find that from the Minutes of the Technical Review Committee of Ministry of Environment and Forests held on 16.11.2011 which have been obtained by the Respondent from the Ministry under Right of Information Act, it is clear that Government itself treated Digital Multifunction Printing and Photocopying Machines as different from Photocopying Machines and for this reason only, felt the need to mention the old and used Digital Multifunction Printing and Photocopying Machines in para 2.17 of the Foreign Trade Policy, as items restricted for import and accordingly w.e.f. 05.06.2012 para 2.17 of the Foreign Trade Policy was amended by adding old and used Digital Multifunction Printing and Photocopying Machin, in this para as the item restricted for import. It is, therefore, clear that during the period prior to 05.06.2012, the old and used Digital Multifunction Printing and Photocopying Machines could be import without any licence. We find that same view has been taken by Co-ordinate Bench of the Tribunal in case of Shivam International (Supra) and also by the Honble Madras High Court in cases of Anand Impex (Supra) and sai Graphic System Vs. Commissioner of Custom, Chennai reported in 2013 (289) ELT-423 (Mad.). In view of this position and also keeping in view the fact that the Chartered Engineer Certificate has certified that the goods imports are not e-waste, we hold that goods, in question, were not restricted for import and as such no import licence was required for their import. Therefore there is no infirmity in the impugned order setting aside the confiscation of the goods under section 111(d) of the Customs Act.
7. As regards the value of the goods, the declared value is Rs. 31,83,127/-, while accordingly to the Department, the correct value of the goods based on the Chartered Engineers Certificate would be Rs. 34,92,576/-. Difference between declared value and the value of the goods according to the Department is very small and as such no evidence has been produced by the Department that the declared transaction value is incorrect and or that the Respondent had made additional payment to the supplier over and above declared value. In view of these circumstances we are of the view that the allegation of mis declaration of value is also without any basis and as such there is no infirmity in the order of the Commissioner (Appeals) on this point.
8. In view of the above discussion, the order of the Commissioner (Appeals) is upheld. The Revenues appeal is dismissed.
(Order dictated and pronounced in the open court)
(Archana Wadhwa)
Member (Judicial)
(Rakesh Kumar) Member(Technical)
S.Kaur
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