Custom, Excise & Service Tax Tribunal
Kolkata(Port) vs Riddhi Siddhi Enterprises on 12 January, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.1
Customs Appeal No.75212 of 2014
(Arising out of Order-in-Appeal No.196-205/Cus(Apprg.)/Kol.(P)/2013 dated
08.10.2013 passed by Commissioner (Appeals) of Customs, Kolkata)
Commissioner of Customs (Port), Kolkata
15/1, Strand Road, Kolkata-700001
Appellant
VERSUS
M/s Riddhi Siddhi Enterprises
265, Bipin Bihari Ganguly Street, Kolkata-700012
Respondent
APPERANCE :
Shri Tariq Sulaiman, Authorized Representative for the Appellant None for the Respondent CORAM:
HON'BLE MR.R.MURALIDHAR, MEMBER (JUDICIAL) HON'BLE MR.RAJEEV TANDON, MEMBER (TECHNICAL) FINAL ORDER NO.75070/2024 DATE OF HEARING : 12 .01.2024 DATE OF DECISION : 12 .01.2024 Per R.Muralidhar :
The Revenue is in appeal against the impugned order wherein it has been held that the import of Digital Multifunction Printers are restricted items and license is required for imports made from 19.10.2012 to 22.01.2013.
2. The facts of the case are that the appellant imported old and used Digital Multifunction Printers and filed bills of entry dated 19.10.2012, 28.09.2012, 26.12.2012, 09.11.2012, 04.01.2013, 31.12.2012, 04.01.2013, 18.01.2013, 22.01.2013. The goods were examined in the presence of Customs Officials, Chartered Engineer and representative of the appellant and found to be old and used having residual life of more than six years and the said machines were found to be minor 2 Customs Appeal No.75212 of 2014 reconditioning and values were assessed on the enhanced value as compared to declared value. The said value was arrived by Chartered Engineer after inspection and production of market value recommendations based on several aspects like useful life of machines/Make & Model/technology/country of origin/physical condition/comparison with similar goods imported in past/internet information/reconditioning etc.. It was held that the said consignment being second hand was restricted item in terms of Para 2.17 of Foreign Trade Policy, 2009 - 2014 and Para 2.33 & 2.33A of HBP and could be imported against valid license. Therefore, the goods in question are restricted items and import of the same was disallowed and it was held that being restricted items and has not been produced any license, the goods are liable to hold confiscation. Consequently, redemption fine and penalty were imposed on enhanced value on the respondent. Against the said order, the Revenue is before us.
3. It is seen that the issue has been settled in the case of Bhawani Enterprises reported in 2017 (353) ELT 234 (Tri.-Kolkata), wherein it has been held that prior to 28.02.2013, no license is required. Therefore, the goods are not liable for confiscation. Hence, redemption fine and penalty are not sustainable on the appellant.
4. Heard both the parties and considered the submissions made by both the sides.
5. We hold that the date of importation in this case is from 19.10.2012 to 22.01.2013, which are prior to issuance of DGFT Notification No.35(RE-2012)/2009-2014 dated 28.02.2013. 3
Customs Appeal No.75212 of 2014
6. We further take note of the fact the said issue has already been settled by this Tribunal in the case of Bhawani Enterprises (supra), wherein this Tribunal has observed as under :
"4. We find that the issue has already been settled by this Tribunal in the case of Bhawani Enterprises reported in 2017 (353) ELT 234 (Tri.-Kolkata), wherein the Tribunal has held as under :
"3. After hearing the ld. Counsel for the Department and on perusal of the case record, we find, that on the licensing aspect, the Commissioner (Appeals) has followed the order of Hon'ble Madras High Court in the Writ Petition Nos. 890 to 894, 949 to 961 and 1170 to 1188 of 2012, dated 14-3-2013 [2014 (302) E.L.T. 212 (Mad.)] wherein it was held that upto 28-2-2013, there was no restriction on import of subject goods. Enquiring from the office of the DGFT, it was informed that in consultation with Law Ministry, they had decided not to file SLP against the said judgment of the Madras High Court. As for the question of confiscation of the goods for mis-declaration of value, we find that the appellants had declared the goods correctly in description/quantity/value and classified them under proper chapter heading of Customs Tariff. The value of the goods was enhanced on the basis of the Chartered Engineer's certificate which was accepted by both the parties. We agree with Commissioner (Appeal)'s findings that (i) mere enhancement of value on the basis of C.E. certificate cannot be a ground for treating declared value as mis-declared unless there is other corroborative evidence. (ii) except enhancement on the basis of C.E.'s Certificate, there is no other material on record to inform that declared value was mis-declared."
As in the case of Bhawani Enterprises (supra) for earlier import of identical goods, it was held that there was no restriction of import of the subject goods, we hold that no 4 Customs Appeal No.75212 of 2014 specific license is required for import of the impugned goods. We further find that for enhancement of value, the Chartered Engineer's Certificate cannot be relied upon unless there is corroborative evidence, we hold so."
7. In view of the above relied upon decisions in the case of Bhawani Enterprises (supra) & Rajesh Exports Ltd. (supra), we hold that as the import has been affected prior to 28.02.2013, there is no restriction of import of the subject goods. Hence, no specific license is required for import of the impugned goods.
8. In that circumstances, we hold that for enhancement of value, the Chartered Accountant's Certificate cannot be relied upon unless and until there is corroborative evidence. Therefore, we hold that that the goods are not liable for confiscation. No redemption fine can be imposed and no penalty on the respondent.
9. In the result, the Revenue's appeal is dismissed.
(Dictated and pronounced in the open court) (R.Muralidhar) Member (Judicial) (Rajeev Tandon) mm Member (Technical)