Custom, Excise & Service Tax Tribunal
Commissioner Of Customs vs ) Rajeswari Graphics on 14 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal Nos.C/502/2005 & C/539/2005
[Arising out of Order-in-Appeal No.127/2005-TTN (CUS) (ADK) dt. 5.7.2005 and OIA No.129/2005-TTN (CUS) (ADK) dt. 5.7.2005 passed by the Commissioner ofCentral Excise (Appeals),Trichirapalli]
For approval and signature:
HonbleShriMATHEW JOHN, Technical Member
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 the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commissioner of Customs,
Tuticorin
Appellant
Versus
1) Rajeswari Graphics
2) Sooraj Graphics
Respondent
Appearance:
Shri M. Rammohan Rao, DC (AR) For the Appellant Shri M. Karthikeyan, Consultant For the Respondent CORAM:
HonbleShri Mathew John, Technical Member Date of hearing : 14-11-2013 Date of decision : 14-11-2013 FINAL ORDER No.40585, 40586/2013 The respondents viz. M/s.Rajeswari Graphics & M/s.Sooraj Graphicsimported certain goods vide Bill of Entry No.359758 dt. 24.3.2005 and B/E No.360932 dt. 8.4.2005respectively and declared the goods as used photocopiers. On examination of the goods, it was found that the photocopiers were incomplete inasmuch as few parts were missing. The goods were found to be used and not reconditioned and these items did not constitute full photocopiers. Revenue was of the view that as per para 2.17 of EXIM Policy read with para 2.32 of Handbook of Procedures Import of second hand goods required specific license and since no such specific license was produced, action was taken inter alia to confiscate the goods and impose fine and penalties. In adjudication, the goods were confiscated and redemption fine of Rs.2,80,000/- &Rs.1,80,000/- were imposed and a penalty of Rs.60,000/- &Rs.45,000/- were also imposed respectively on the respondents. In appeal, the Commissioner (Appeals) set aside redemption fine and penalty. Aggrieved by the order of Commissioner (Appeals), Revenue has filed this appeal.
2. Revenue is relying on DGFTs Circular No.20/2004-09 dt. 23.2.2005 and Circular No.1/94/167/270/AM-06/PC-J/1119 dt. 4.8.2005 clarifying that photocopies are only second hand goods and not second hand capital goods and therefore has to be treated as restricted goods.
3. After hearing both sides, I find that this issue came up before the Hon. Apex Court in the case of Atul Commodities Pvt. Ltd.Vs CC Cochin - 2009 (235) ELT 385 (SC) wherein the Hon. Apex Court observed that photocopiers can be considered as capital goods only w.e.f. 19.10.2005 when the statutory provisions were amended and the circulars issued prior to that date could not be given effect to consider the goods to be not capital goods without amending the policy. In this particular cases, the imports were prior to 19.10.2005. Though the goods were not complete machine, it was assessed as complete machine. Since the goods were assessed as complete machine, it is not proper to hold that the goods were only components and parts to apply restriction for goods other than capital goods.
4. Arguing for Revenue, Ld. AR submits that in this case the imported goods were not photocopiers but only parts of photocopiers. Therefore, the goods could not have been considered as capital goods and the restriction in importing used goods applied. The goods were not complete machine as certified by Chartered Engineer.
5. Inview of the assessment adopted by the adjudicating authority and considering the decision of the Hon. Apex Court in the case of Atul Commodities (supra), I find no merit in the appeals filed by Revenue and the same are rejected.
(Dictated and pronounced in open court) (MATHEW JOHN) TECHNICAL MEMBER gs 2