Custom, Excise & Service Tax Tribunal
M/S. Sri Balaji Enterprises vs Cc, Hyderabad-Ii on 23 September, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No.C/1072/2010 (Arising out of Order-in-Appeal No.06/2010(H-II)Cus dt. 20/01/2010 passed by CC,CE&ST(Appeals-II), Hyderabad) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member(Judicial) 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 Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s. Sri Balaji Enterprises ..Appellant(s) Vs. CC, Hyderabad-II ..Respondent(s)
Appearance Shri Y. Sreenivasa Reddy, Advocate for the appellant.
Shri Gunaranjan, Superintendent(AR) for the respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member(Judicial) Date of Hearing:23/09/2016 Date of decision:23/09/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.] The issue involved in the appeal is whether the goods imported are liable for confiscation as having been imported without license, in contravention of condition laid in Para 2.17 of the FTP.
2. The appellant imported Multi Function Digital Photocopying machines which also function as printer, scanner, Xerox etc. with memory function within them and filed Bill of Entry for clearing the same. The Customs at Hyderabad detained the consignment on the ground that the goods were hazardous substances to be treated as e-waste which were prohibited for import under Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 and also they were restricted for import under para 2.17 of the FTP. According to appellant, the goods which are photocopiers falling under CTH 84433930 which attract nil rate of duty are only restricted under FTP and not MFD machines that are classified under CTH 84433100. The issue stands covered by the judgment of Honble Tribunal in the case of Shivam International Vs. CC, Cochin [2012(286) ELT 545 (Tri. Bang.)] on the ground that the restriction of import for MFD is w.e.f. 05/06/2012 only. The Honble Madras High Court in the case of Sai Graphic Systems Vs. CC, Chennai [2013(289) ELT 423 (Mad.)] has taken similar view.
3. The appellant had filed miscellaneous application No.644/2012 praying to receive additional grounds in the appeal. The appellant thus prayed to include the contention that they had imported used MFD copiers which had functions as printers, scanners, fax etc. with memory function apart from Xeroxing. The said petition was kept in abeyance to be considered along with the final hearing of the appeal. As the ground sought to be added is not entirely new and is fully based upon the facts and evidences already on record, I am of the view that this additional ground can be accepted.
4. It is not disputed that the imported goods were described as multi function copiers (MFD) and also classified under CTH 84433100. Further the Chartered Engineer had also certified the goods to be multi function copiers. The department has proceeded to confiscate the items considering them to be mere photocopiers which fall under CTH 84433930.
5. The restriction imposed is the case of MMFD is only from 05/06/2012 onwards as seen from para 2.17 of the FTP. The appellant had imported the goods prior to 05/06/2012. Further the classification description as well as the certificate of the Chartered Engineer shows that the imported goods are not per se photocopiers. Therefore the confiscation of the goods on the ground that they are restricted is without any legal or factual basis.
6. The said issue was considered by the Tribunal in the case of Sri Sai Graphics and others Vs. CC, Hyderabad-II [Final Order No.A/30035-30037/2016 dt. 20/01/2016]. Following the decision laid in the above case, I hold that the confiscation of goods and consequent imposition of redemption fine and penalty is not sustainable. The impugned orders are modified to the extent of setting aside the confiscation of goods and imposition of redemption fine and penalty. In the result, the appeal is allowed in above terms with consequential reliefs, if any. The miscellaneous application is disposed accordingly.
(Pronounced and dictated in open court) SULEKHA BEEVI C.S. MEMBER(JUDICIAL) Raja.
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