Custom, Excise & Service Tax Tribunal
A-1 Electronic vs Cc (I), Nhava Sheva on 5 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/533/10 Mum
(Arising out of Order-in-Original No. 1229/2010 dated 26.02.2010 passed by the Commissioner of Customs (Appeals), Mumbai II)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
A-1 Electronic
:
Appellant
Versus
CC (I), Nhava Sheva
Respondent
Appearance Shri N.D. George, Advocate For appellants Shri K.S. Mishra, Addl. Commissioner (A.R.) For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 05.03.2014 Date of Decision : 05.03.2014 ORDER NO.
Per Ashok Jindal The appellant is in appeal against the impugned order for imposing redemption fine and penalty under Section 111(d) of the Customs Act, 1962.
2. Brief facts of the case are that the appellant imported 2nd hand photocopiers as capital goods on 03.09.2009 and filed Bill of Entry. At the time of clearance of the goods, the Revenue held that these photocopier machines requires license as per para 2.17 of the Foreign Trade Policy 2004-2009. As no license has been obtained by the appellant, it was held that the goods are liable for confiscation. Accordingly, redemption fine was imposed under Section 111(d) and 111(m) of the Act. Penalty was also imposed. The appellant has challenged the same before the learned Commissioner (Appeals) who in turn upheld the order of the adjudication order. Aggrieved by the same, the appellant is before me.
3. Heard both sides.
4. The learned Counsel for the appellant submits that as per the judgement of the Honble Supreme Court in the case of Atul Commodities Pvt. Ltd. - 2009 (235) ELT 385 (S.C.) wherein it was held that the old and used photocopier machines covered under para 2.17 and they are capital goods and not required licence and there is no requirement to obtain licence for import of the said photocopier machines. Therefore, redemption fine and penalty is not imposable on them.
5. On the other hand, the learned A.R. strongly opposed the contentions of the learned Advocate and submits that as per the Notification No.31/2005 dated 19.10.2005 for the import of 2nd hand photocopier machines, licence is required. Therefore, the decision in the case of Atul Commodities Pvt. Ltd. (supra) is not applicable to the facts of this case as in that case the import took place in January 2005 when the Notification 31/2005 was not available. He further submits that the Notification is having a binding force but the Circulars and the clarification are not having a binding force. In these circumstances, the lower authorities have rightly confiscated the goods imported by the appellant under Section 111(d) of the Act and the redemption fine and penalty were also rightly confirmed.
6. Considered the submissions made by both the sides.
7. In the case of Atul Commodities Pvt. Ltd. (supra) the goods were imported in January 2005 and the Notification 31/2005 came into existence only in 19th October 2005 which is reproduced here-in as under:-
1. The paragraph of Para 2.17 will be amended to read as follows:
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 license issued in this behalf.
8. As per the said Notification and the import of 2nd hand photocopier machines is required license prior to the import. Admittedly, in this case the appellant has not obtained the license. Further, I find that the Notification is a binding force as observed by the Honble Apex Court in para 21 in the case pf Atul Commodities Pvt. Ltd. (supra) which is reproduced herein as under:-
21. One more aspect needs to be mentioned. Para 2.33 expressly states that import of old and used computers/second-hand computers are restricted. Para 2.33 of the Handbook do not restrict photocopying machines. Import of photocopying machines are expressly restricted only by Notification No.31 dated 19.10.2005. This itself indicates that categorization/re-categorisation cannot be done by policy circulars. Such exercise has to be undertaken by specific mendment to the Policy vide Section 5 of the 1992 Act. In this case, Notification No.31 dated 19.10.2005 indicates that the Central government has brought in phogocopying machines in to the category of second-hand goods vide amendatory Notification, therefore, import of photocopying machines stand restricted only on and after 19.10.2005. As per the Notification the appellant is required to obtain licence for the importation of the 2nd hand photocopier machines. Therefore, I do not find any infirmity in the impugned order for holding that the impugned goods are restricted at the time of their import. Accordingly, I hold that the impugned goods are liable for confiscation which can be redeemed on payment of redemption fine and penalty. I also find that the redemption fine and penalty imposed on the appellant is on the higher side. Therefore, relying on the decision in the case of CC v. Dilip Ghelani - 2009 (248) ELT 888 (Tri.), I reduced the redemption fine and penalty imposed on the appellant by the adjudicating authority to 10% and 5% respectively.
9. The appeal is disposed of in the above terms.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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