Customs, Excise and Gold Tribunal - Bangalore
Atul Commodities Pvt. Ltd., Tushar ... vs The Commissioner Of Customs, Cochin on 29 June, 2005
ORDER S.L. Peeran, Member (J)
1. In this bunch of 6 appeals, the issue is common and hence they are taken up together for disposal as per law. In C/36/2004, C/223/2004 to C/225/2004 of the parties' appeals and in C/466/2004 of the Revenue's appeal, the issue is that the importers had imported second hand Photocopier Machines and had paid for clearance as Capital Goods and also on the reason that it does not require license. In the importers' appeals, the Revenue has proceeded against them on the ground that the Photocopier machines require a license in terms of Para 2.17 of the EXIM Policy. As the same had not been produced, the photocopier machines were confiscated and fine and penalty has been imposed.
2. In the Revenue appeal, the Commissioner considered the same as Capital Goods and allowed the same as they are freely importable by reducing the fine and penalty. Hence, the Revenue is aggrieved with this order.
3. The learned Counsel submits that the issue is no longer res integra and the Larger Bench, in the case of Atul Commodities (P) Ltd. v. CC, Hyderabad - who are one of the parties in the present appeal also, has clearly held that second hand Photocopiers can be imported as Capital Goods within the meaning of para 9.12 of Foreign Trade Policy and are freely importable under para 2.17. It has also been held that they are not 'consumer goods' and has set aside the order of confiscation and imposition of fine and penalty. The learned Counsel submits that this Bench has been pleased to allow a bunch of appeals on 28.06.2005 in the case of Office Devices v. CC, Cochin/Vizag in Appeal Nos.C/37 to 39/2004, C/358/2004, C/220-322/2004 & C/401/2004.
4. The learned SDR reiterated the departmental view.
5. On a careful consideration, we agree with the learned Counsel that the issue is no longer res integra and the Larger Bench, presided by the Hon'ble President, has given a categorical finding in the case of M/s. Atul Commodities (P) Ltd. (cited supra), who are one of the parties in the present appeal also, that the second hand photocopier can be imported as Capital Goods within the meaning of Para 9.12 of the Foreign Trade Policy and also that they are freely importable under Para 2.17 of the EXIM Policy. The Bench has also held that they are not consumer goods and hence, the imposition of fine and penalty has been set aside. Respectfully following the same, the appeals of the importers are allowed and the appeal of Revenue is rejected.
6. In so far as the appeal No.C/326/2004 is concerned, the appellant had imported the Main Frame of the Photocopiers which require license and which are not freely importable. The learned Counsel fairly concedes the position pertaining to the import without license. However, it is his submission that in terms of the Apex Court judgment rendered in the case of Tolin Rubbers Pvt. Ltd. v. CC, Cochin - and that of Gajra Bevel Gears v. CC, Bombay - , the Transaction Value is required to be accepted and the rejection of the Transaction Value and reliance of internet price is not sustainable. He relies on the Tribunal ruling rendered in the case of Aggarwal Distributors (P) Ltd. v. CCE - 2000 (117) ELT 49 (Tribunal) wherein the Tribunal has held that internet price is not reliable for enhancing the value. He submits that in terms of the Transaction Value declared by them, the Redemption Fine is required to be restricted to 10%. He submits that penalty is already less than 10% of Transaction Value and he does not contest the same.
7. Heard learned SDR who reiterated the departmental view.
8. On a careful consideration, we find that in this appeal, the appellants have imported the Main Frame of second hand photocopier machines, which requires license. Therefore, the order of confiscation and imposition of fine and penalty is justified. However, the enhancement of value by the department by adopting the Internet price is required to be set aside in terms of the Apex Court and Tribunal ruling cited before us. The explanation is required to be accepted, as there is no evidence of contemporaneous import. The Redemption fine is fixed at 10% of the Transaction Value. The penalty is retained and no modification is ordered. The impugned order is modified accordingly and appeal disposed of.