Customs, Excise and Gold Tribunal - Bangalore
Office Devices, Kolkata And Office ... vs The Commissioner Of Customs, Cochin And ... on 28 June, 2005
ORDER S.L. Peeran, Member (J)
1. All these appeals raise a common question of law in facts and hence they are taken up for disposal as per law.
2. The appeals C/37 to 39/2004, C/222/2004 and C/358/2004 pertain to import of Second Hand Photocopying Machines without licence and the authorities have proceeded to confiscate the goods on the ground that the item requires licence. The value has also been enhanced and the Transaction Value has been rejected. Hence, the appellants are aggrieved with the impugned orders. It is contended by the learned Counsel that the Larger Bench, in the case of Atul Commodities (P) Ltd. v. CC has upheld the import of second hand Photocopier Machine as Capital Goods and has further held that it does not require licence. The learned Counsel further submits that the Transaction Value has to be in respect of second hand imports, is required to be upheld in the absence of any evidence of contemporaneous nature and in this regard, he relies on the Apex Court judgment rendered in the case of Tolin Rubbers Pvt. Ltd. v. CC, Cochin ; Gajra Bevel Gears v. CC, Bombay . He also submits that the Revenue has proceeded on the basis of the Internet price which cannot be considered for revision of the Transaction Value as held by the Tribunal in the case of Aggarwal Distributors (P) Ltd. v. CC, New Delhi . He also refers to a large number of similar orders passed by the Tribunal. In the circumstances, the learned Counsel submits that penalty and fine in these appeals is required to be set aside and Transaction Value should be accepted.
3. The learned SDR reiterated the departmental contention. However, he fairly conceded that the Larger Bench decision and Apex Court rulings are in favour of the assessee.
4. On a careful consideration, we notice that the import of Second hand and used Photocopers of various models does not require licence as they are freely importable as Capital Goods as held by the Larger Bench in the case of Atul Commodities (Cited supra). Hence, the order of confiscation and imposition of fine and penalty in these appeals is set aside.
5. As regards the Valuation, the Revenue has proceeded on the basis of Internet price, which cannot be a basis to reject the Transaction Value in terms of the judgments cited by the learned Counsel, which is noted supra. The Apex Court also, in the noted judgments, has clearly laid down that the Transaction Value in respect of second hand machinery cannot be rejected and is required to be accepted. In view of the settled position of law, the impugned orders in these appeals are required to be set aside by allowing the appeals. Ordered accordingly.
6. In so far as the appeals C/320, 321 and 401/2004 are concerned, the learned Counsel fairly concedes that the Main Frame of Photocopier requires licence and he does not want to contest the issue except to say that in terms of a large number of judgments cited by him, the penalty has to be only to the extent of 10% of the Transaction Value.
7. He submits that in the case of C/320/2004, the penalty imposed by the Commissioner is less than 10% and the same has to be confirmed on the Transaction Value. He submits that it works out to 9% and the same 9% can be retained on the Transaction Value. He submits that the judgments cited by him with regard to acceptance of Transaction Value is required to be applied in this appeal also.
8. On a careful consideration, we notice that there is no contest with regard to the appellant requiring a licence to import the Main Frame. The same was imported without licence. Hence we uphold the order of confiscation and imposition of fine and penalty. The Transaction Value, as held in the above appeals, is required to be accepted in this case also as there was no evidence of contemporaneous import. The Internet price cannot be accepted as contemporaneous evidence as held in several rulings of the Tribunal and as held in the Apex Court judgment noted supra. We have also seen the judgment of Tribunal in the case of Nova Office System v. CC, Visakhapatnam in Final Order No. 608/2004-NB-A dated 24.11.2004, by which the Tribunal has upheld the order of confiscation for not obtaining licence on import of Main Frame of Photocopiers. The fine and penalty has to be on the basis of Transaction Value. We fix fine at 10% of Transaction Value and penalty of 10% in Appeal C/321/2004 and in appeal No. C/401/2004 while in appeal C/320/2004, the fine is 10% of the Transaction Value and Penalty is 9% as already held by the Commissioner and should be on the Transaction Value only. The impugned orders are modified and disposed of accordingly.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)