Custom, Excise & Service Tax Tribunal
M/S. National Copier Equipments vs C.C.E. Chandigarh on 24 September, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Date of Hearing: 24.09.2014
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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?
4
Whether Order is to be circulated to the Departmental authorities?
Appeal No. C/126/2009 - CU[DB]
[Arising out of Order-in-Appeal No.159/CUS/LDH/2008, dt.19.12.08, passed by the Commissioner (Appeals) Chandigarh]
M/s. National Copier Equipments Appellants
Vs.
C.C.E. Chandigarh Respondent
Appeal No. C/151/2009- CU[DB] C.C.E. Chandigarh Appellant Vs. M/s. National Copier Equipments Respondent Appearance:
Sh. Jitin Singhal, Advocate - for the Appellants Sh. Amresh Jain, AR and Shri Sanjay Jain, AR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Rakesh Kumar, Member (Technical) FINAL ORDER NO:-53880-53881/2014 Dt. 24.9.2014 Per Archana Wadhwa:-
Both the appeals, one filed by the assessee and the other by the Revenue are being disposed of by a common order as they arise out of the same impugned order passed by the Commissioner (Appeals).
2. As per facts on record, the assessee imported 119 pieces of Old and Used Mainframes for Copier Incorporation Optical Systems and filed a bill of entry for clearance of the same by declaring the assessable value as Rs.11,69,120/-. The said bill of entry was filed on 14.09.2005. Revenue objected that the import of old and used photocopier mainframes is restricted and the importer required an import licence for the same. Further, the value of the same was also doubted by the department and based upon the Chartered Accountants certificate as also some other contemporaneous bills of entries, the value was enhanced to Rs.15,45,968/-. In addition, penalties were imposed. On appeal, the Commissioner (Appeals) upheld the impugned order of the lower authorities but set aside the penalty on the ground that the name of the assessee was wrongly mentioned. Both the sides are in appeal against the said order.
3. As regards the assessees appeal, we find that the Honble Supreme Court in the case of Atul Commodities Pvt. Ltd. Vs. CC, Cochin reported in 2009(235) ELT 385(SC) has held that prior to 19.10.2005, the import of second hand and used photocopier machines was free and did not require an import licence. Inasmuch as in the present case, the bill of entry was filed on 14.09.2005, we, by following the above decision of the Supreme Court, hold that the items was not restricted.
4. As regards the valuation, we find that inasmuch as the appellant did not produce Overseas Chartered Engineer Certificate, the Revenue engaged a local Chartered Accountant, who opined upon the old conditions of the photocopiers. The Revenue adopted contemporaneous assessable value and enhanced the same to Rs.15,45,968/-.
5. Ld. Advocate had drawn our attention to the Honble Supreme Court decision in the case of Tolin Rubbers Pvt. Ltd. Vs. Commissioner - 2004(163) ELT 289 (SC) laying down that in terms of Rule 4(1) of the Customs Valuation Rules, 1988, the transaction value will have to be first rejected, which can be done only, if any exceptional circumstances are found. Inasmuch as the Revenue has not followed the procedure in that case, the Honble Supreme Court adopted the transaction value as the correct value.
6. Similarly, the Tribunal in the case of Maharashtra Services Vs. CC, Trichy - 2009 (245) ELT 830 (Tribunal-Chennai) observed that adoption of value given by the Chartered Accountants certificate was not in consonance with the provisions of Rule 4 of the Customs Valuation (Determination of Price of Import Goods) Rules, 1988, inasmuch as there is no evidence for payment of excess money by the importer to the supplier of the goods.
7. Applying the ratio of the above decision to the facts of the instant case, we note that the Revenue has not first rejected the transaction value by production of any evidence. Further, it is not Revenues case that any extra money has been delivered to the foreign supplier, without reflecting the same in the records. Revenue has simplicitor adopted the value of another import of old and used photocopier machines. It may not be out of place to observe here that the value of the second hand goods depends upon the number of factors including the conditions of the goods and as such, the second hand goods cannot be held to be contemporaneous to each other. In view of the foregoing, we find no merits in the impugned order of the lower authorities. The same are accordingly set aside and the assessees appeal allowed with consequential relief.
8. Inasmuch as we allowed the assessees appeal, Revenues appeal is accordingly rejected.
(Archana Wadhwa) Member (Judicial)
(Rakesh Kumar) Member(Technical)
Ckp.