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Judgment
263 paragraphs · 3,699 words,,,,,,,
The short issue involved in the present appeals of the Revenue against the order passed by Commissioner (Appeals) is as to whether the Digital,,,,,,,
Multifunction Printing and copying Machines (Old and used), imported prior to 05.06.2012 are hit by Para 2.17 of the Foreign Trade Policy, which",,,,,,,
placed the same under the restricted category with effect from 05.06.2012. It is seen that prior to the said date, only photocopier were listed under the",,,,,,,
said Para 2.17 of the Foreign Trade Policy for the purposes of requirement of licence.,,,,,,,
Commissioner (Appeals) has granted relief to the respondent by observing as under Para 5 of Commissioner (Appeals):-,,,,,,,
The issue of requirement of license with reference to Para 2.17 of Rules (supra) has been amply addressed to in the case of M/s Shivam",,,,,,,
International and M/s Sree Maa Enterprises v. C.C. Cochin by CESTAT, Bang/ore vide final order No. 4052416/2011 dated 27.06.2011,",,,,,,,
wherein it was held that the subject goods do not fall under the restriction imposed. This case laws, it is observed has since, attained",,,,,,,
finality. It is admitted that the imported goods are not merely photocopy machines but are having both printing, copying machines while",,,,,,,
relying upon the HSN explanatory goods to sub-heading 84.43. It is further an admitted fact in the bill of entry itself and also by the,,,,,,,
referred Chartered Engineer Certificate that the impugned goods are multi functional in description and nature.""",,,,,,,
The Revenue's appeal is on the ground that the decisions relied upon by Commissioner (Appeals) were duly taken into account by the Tribunal in,,,,,,,
the case of Unitech Enterprises Vs. Commissioner of Customs reported in 2012 (279) ELT-236 laying down that inasmuch as Para 2.17 of Foreign,,,,,,,
Trade Policy restricts photocopier machine and inasmuch as Digital Multifunction Printing and Copying Machine are another category of Photocopier,,,,,,,
Machine, the same should also held to be falling under restricted category, requiring a import licence.",,,,,,,
After hearing both the sides, we find that the issue is no more which the appeal filed by the Revenue was rejected. In the case of CCE, Delhi M/s.",,,,,,,
Best Mega International, final order No. 55993/2013 dated 21.03.2013, the Tribunal took into account the Chennai Bench decision in the case of",,,,,,,
Unitech Enterprises, strongly relied upon by the revenue and held that inasmuch as the issue stands subsequently decided by the Hon'ble Madras High",,,,,,,
Court in two decisions, it is the decision of the High Court which are required to be followed. It is seen that the Hon'ble Madras High Court in the",,,,,,,
case of Anand Impex reported in 2012 (281) ELT-178 (Mad.) as also in the case of Sai Graphic System Vs. Commissioner of Custom, Chennai",,,,,,,
reported in 2013 (289) ELT-423 (Mad.) has held that there was no restriction on import of old and used Digital Multifunction Printing and,,,,,,,
Photocopying Machine prior to 06.06.2012. Accordingly the Tribunal in the above referred case of CCE, Delhi M/s. Best Mega International, has",,,,,,,
taken note of the said to decision of the Hon'ble High Court as also Minutes of the Meeting of Technical Review Committee of Ministry of,,,,,,,
Environment and Forests held on 16.11.2011 and has held as under:-,,,,,,,
The goods imported are old and used Digital Multifunction Printing and Copying Machines covered by sub-heading 84433100. In terms of",,,,,,,
the Chartered Engineer Certificate, the remnant life of the machines is more than 5 years and the same are not e-waste fit to be discarded.",,,,,,,
During the period of dispute, para 2.17 of the Foreign Trade Policy mentions the restricted category of second hand capital goods and the",,,,,,,
same mentioned only photocopier machines as one of the items which could not be Imported in old and used conditions without an import,,,,,,,
licence. The term Digital Multifunction Printing and Copying Machines was added in para 2.17 of the Foreign Trade Policy only w.e.f.,,,,,,,
05.06.2012. The point of dispute is as to whether during period prior to 05.06.2012, which is the period of dispute in this case, old and",,,,,,,
used Digital Multifunction Printing and Copying Machines could be imported without licence or not.,,,,,,,
We find that from the Minutes of the Technical Review Committee of Ministry of Environment and Forests held on 16.11.2011 which have,,,,,,,
been obtained by the Respondent from the Ministry under Right of Information Act, it is clear that Government itself treated Digital",,,,,,,
Multifunction Printing and Photocopying Machines as different from Photocopying Machines and for this reason only, felt the need to",,,,,,,
mention the old and used Digital Multifunction Printing and Photocopying Machines in para 2.17 of the Foreign Trade Policy, as items",,,,,,,
restricted for import and accordingly w.e.f. 05.06.2012 para 2.17 of the Foreign Trade Policy was amended by adding old and used Digital,,,,,,,
Multifunction Printing and Photocopying Machine, in this para as the item restricted for import. It is, therefore, clear that during the period",,,,,,,
prior to 05.06.2012, the old and used Digital Multifunction Printing and Photocopying Machines could be import without any licence. We",,,,,,,
find that same view has been taken by Co-ordinate Bench of the Tribunal in case of Shivam International (Supra) and also by the Hon'ble,,,,,,,
Madras High Court in cases of Anand Impex (Supra) and sai Graphic System V/s Commissioner of Custom, Chennai reported in 2013 (289)",,,,,,,
ELT-423 (Mad.). In view of this position and also keeping in view the fact that the Chartered Engineer Certificate has certified that the,,,,,,,
goods imports are not e-weste, we hold that goods, in question, were not restricted for import and as such no import licence was required",,,,,,,
for their import. Therefore there is no infirmity in the impugned order setting aside the confiscation of the goods under section 111(d) of the,,,,,,,
Customs Act.""",,,,,,,
Inasmuch as the issue stands decided by a detailed order of the Tribunal, which has followed the High Court decisions, we find no reason to take a",,,,,,,
different view. Accordingly all the appeals filed by the revenue are rejected.,,,,,,,
(Pronounce in the open Court on……),,,,,,,
Sd/-4/7/13 (Archana Wadhwa),,,,,,,
Member (Judicial),,,,,,,
Sd/- (Manmohan Singh),,,,,,,
Member (Technical),,,,,,,
C/56642/2013 and C/56659-56661/2013 and 56664, 56666/2013",,,,,,,
M/s Asian Copier and others,,,,,,,
Per: Manmohan Singh,,,,,,,
Respondents are not in cross objection,,,,,,,
I have gone through the draft order prepared by Id. Member (Judicial) wherein appeals of Revenue have been rejected holding that old and used,,,,,,,
photocopiers imported were not restricted goods not requiring any license for importation relying on the decision of Tribunal in the case of CCE Delhi,,,,,,,
Vs. Best Mega International reported in 2013 (293) E.L.T. 243 (Tri. Del.). The head note of the reported decision reads as under:,,,,,,,
Sl. No.,"Bill of Entry
No. and date","Importer
Assessee",Appeal No.,Declared Value,"Assessed
value based
on Chartered
Engineer
Certificate","RF (Rs. In
lakhs)","Penalty (Rs.
in lakhs)
1.,"5030196,
dated 27-10-
2011","M/s. Asian
Copiers",C/2805/2013,"Rs.16,23,639.40","Rs.18,60,220/-",Rs.4.00 lakhs,"Rs. 2.00
lakhs
2.,"6429721,
dated 31-2-
2012","M/s. Best
Mega
International",C/56642/2013,"Rs.22,50,559/-","Rs.24,27,153/-","Rs.5,33,900/-","Rs.2,66,900/-
3.,"6416486,
dated 30-3-
2012","Pearl
Enterprises",C/56666/2013,"Rs.30,37,410/-","Rs.33,44,178/-","Rs.7,02,400/-","Rs.3,34,500/-
4.,"5584917,
dated 27-12-
2011","M/s. Prius
Technologies",C/56661/2013,"Rs.30,64,935/-","Rs.33,48,328/-","Rs.7,03,000/-","Rs.3,35,000/-
5.,"6416490,
dated 30-3-
2012","Sunrise
Enterprises",C/56660/2013,"Rs.30,03,201/-","Rs.30,64,935/-","Rs.6,83,700/-","Rs.3,25,600/-
6.,"5584637,
dated 27-12-
2011","Best Mega
International/
Unistar
Enterprises",C/56659/2013,"Rs.34,41,270/-","Rs.42,55,721/-","Rs.8,93,700/-","Rs.4,25,600/-
7.,"5584635,
dated 27-12-
2011",Asian Copier,C/56664/2013,"Rs.29,56,413/-","Rs.31,87,157/-","Rs.7,01,000/-","Rs.3,19,823/-
as these expressions were not identical and secondly, no Tariff item was mentioned in the DGFT Notification. The expression ""photocopier machines""",,,,,,,
used in the context of amendment made to the EXIM policy by Notification No. 31/2005, which has been issued in the public interest to mean all kinds",,,,,,,
of photocopiers irrespective of its classification.,,,,,,,
(iv) These multifunction machines are known as photocopier machines found almost on every street in a city. These multifunction machines are on the,,,,,,,
Government of India's DGS&D rate contract list of photocopier machines.,,,,,,,
The grounds of appeal of revenue raises the issue whether multi-functional printing and copying machines are classifiable under 8443.2100 as,,,,,,,
claimed by Revenue or such goods classifiable under 8443.3990 as claimed by the Respondent assesses and import thereof required licence. Law,,,,,,,
relating to classification, object of section 11 of Customs Act, 1962 and different notifications issued under different",,,,,,,
statute and clarification issued by CBE&C/DGFT have not been considered in the draft order but hold that the good in question were freely importable,,,,,,,
without licence, not being restricted goods.",,,,,,,
The case of Best mega International - 2013 (293) ELT 243 in (Tri-Delhi) related to import of Canon Digital multifunction printing and copying,,,,,,,
machine claiming classification thereof by assessee under T.H.,,,,,,,
8443.3990 while Revenue claimed classification of the same under TH: 8443.3100. Para 4 of the order classifies the position as under:,,,,,,,
Shri Priyadarshi Monish, Ld. Counsel for the respondent pleaded that the goods imported are Digital Multifunction Printing and Copying",,,,,,,
Machines classifiable under sub-heading 8443.31 00 of the Tariff and the same are different from the electrostatic photocopying machines,,,,,,,
covered by sub-heading 8443.39 30, that it is the old and used electrostatic photocopying machines which were restricted.""",,,,,,,
As is apparent from above paragraph, goods imported were old and used digital multifunctional printing and copying machine and Tribunal was",,,,,,,
posed with the question of classification. But real issue,,,,,,,
involved as is apparent from the facts of that case is whether during the period prior to 5-06-2012 old and used machine could be imported without,,,,,,,
license. But Tribunal arrived at decision on mere classification without examining applicability of the law prevailing on relevant date of import.,,,,,,,
It is noticeable that in M/s Unitech's case reported in 2012 (279) ELT 236 (Tri. Chennai), Tribunal recorded in Para 11 that upon introduction of",,,,,,,
new heeding 8443.3100, there in complete description of the goods and there shall be no question of choosing of any other entry. The said entry",,,,,,,
covers machine which perform two or more of the function of printing, copying or facsimile transmission capable of connecting to an automatic data",,,,,,,
processing machine or to a network. As is held by the Apex Court in Atul commodities 2009 (235) EL T 385 (S.C.), import of photocopier machine",,,,,,,
was restricted on or after 19.10.2005 in terms of amending notification No. 13/2005-CR dated 19.10.2005. Hon'ble Court held that second hand,,,,,,,
photocopier machine of all kinds, were subjected to licensing restrictions after 19.10.2005. The restriction imposed by the notification was not with",,,,,,,
reference to HSN based tariff items but licensing requirement was extended to old and used photo copy machine of any description falling under any,,,,,,,
tariff entry. When the Central Government issued restriction notification in public interest, such restriction is applied to all kinds of second hand",,,,,,,
photocopier machines in general but not limited to any particular type of photocopier machine. Accordingly, nothing can be inferred that restriction",,,,,,,
related to a particular type of goods.,,,,,,,
The Exim Policy by notification No. 31/2005 dated 19.10.2005 encompassed photocopies of all kind to be restricted good. It does not stand to,,,,,,,
reason that DGFT notification No. 31/2005 dated 19.10.2005 does not impose restriction on photocopier of different types. Notification No. 31/2005,,,,,,,
dated 19.10.2005 is reproduced below for ready reference.,,,,,,,
NOTIFICATION NO. 31/2005, DT. 19/10/2005",,,,,,,
Amendments in para 2.17 - Second Hand Goods of Foreign Trade Policy, 2004-09",,,,,,,
S.O. (E) In exercise of powers conferred by Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (No.22 of 1992) read",,,,,,,
with paragraph 1.3 of the Foreign Trade Policy, 2004-09 as amended from time to time, the Central Government hereby makes the following",,,,,,,
amendments:,,,,,,,
The Paragraph of Para 2.17 will be amended to read as follows:,,,,,,,
Import of second hand capital goods, including refurbished/ re-conditioned spares shall be allowed freely. However, second hand personal",,,,,,,
computers/laptops, photocopier machines, air conditioners, diesel generating sets will only be allowed against a license issued in this",,,,,,,
behalf.,,,,,,,
This issues in public interest.,,,,,,,
(K.T. Chacko),,,,,,,
Director General of Foreign Trade And Ex-Officio Additional Secretary to the Govt. of India,,,,,,,
There is nothing to presume that every case is a case of import after 5.6.2012 as that was presumed in the Best Mega International case reported,,,,,,,
in 2013 (293) ELT 243 Tri.-(Delhi) without reference to actual date of import. To clarify the situation in the present batch of appeals, the data",,,,,,,
depicted in the chart at the outset by me shows the date of importation in each case for decision on the basis of law applicable to such importation.,,,,,,,
It is observed from the Chart in proceeding paras that all imports in present cases relate to period prior to 5.6.2012. Decision in each case depends,,,,,,,
on its own fact and context taking into consideration DGFT notification and S.C. Judgement in Atul Commodities case 2009 (235) E.L.T. 385 (S.C.),,,,,,,
Import of goods to India is governed by Customs Act, 1962, in addition to any other law that may govern such import. Law of Customs tests the",,,,,,,
goods imported for permissibility of entry thereof into India according to the provisions therein. Import may be subject to restrictions, prohibitions or",,,,,,,
open. Apart from this, proper classification of import and valuation thereof for the levy is one of the requirements of the Customs law. The goods",,,,,,,
imported may also be notified to be exempt from levy of duty fully or partly according to legislative mandate. Therefore Customs Authority is,,,,,,,
independent of its jurisdiction defined by the law of Customs. They are Administrator of Customs law vested with power to judge applicability of,,,,,,,
provisions of any other law relating to the goods imported or exported in addition to the administration of law of Customs. He is the best judge in the,,,,,,,
customs station to allow, prohibit or restrict entry of the imported goods into the territory of India on the basis of law governing the imports.",,,,,,,
Construction of the provision of customs law in any manner to denude the Customs Authority from exercise of his power shall defeat purpose of,,,,,,,
section 11 of the Customs Act, 1962. Accordingly Customs law cannot be given go by at that law continues to have its independence",,,,,,,
Import of the second hand photocopier was subject to restriction. Those were restricted goods as early as 19.10.2005 by Notification No. 31/2005.,,,,,,,
In addition to such restriction, the Hazardous Waste (Management Handling and Transboundry) Rule of 2008 additionally recognized such goods w.e.f",,,,,,,
5.6.2012 to be hazardous which was observed in the judgment of Apex Court in Atul Commodities case 2009 (235) ELT 385 (S.C.). That position,,,,,,,
remained unimpaired till stated otherwise by notification of 5.6.2012 under different statute,,,,,,,
The Hazardous waste Rules are in addition to Customs law but not a substitute thereof. Therefor CBE&C in its Circular No. 27/2011-Cus dated,,,,,,,
4.7.2011 classified as under:,,,,,,,
As the field formations are aware, the import and export of hazardous wastes is regulated by the Hazardous Waste (Management,",,,,,,,
Handling and Transboundary) Rules, 2008. Chapter IV of these Rules deals with import and export of hazardous wastes and Rule 13",,,,,,,
thereof states that import of such wastes shall be allowed only for recycling, or recovery or reuse and not for disposal. Further, Rule 14",,,,,,,
thereof provides that import and export of hazardous wastes specified in Schedule III shall be regulated in accordance with the conditions,,,,,,,
specified therein. A perusal of the said Schedule III shows that entries at A1180 and B1110 are relevant for electrical and electronic,,,,,,,
assemblies.,,,,,,,
In this regard, the administrative Ministry viz. Ministry of Environment and Forests has been consulted and they have confirmed that",,,,,,,
items at A1180 of the said Schedule III relating to waste electrical and electronic assemblies or scrap containing components such as,,,,,,,
accumulators and other batteries etc. require Prior informed Consent. It is also confirmed that items at B1110 of the said Schedule III can,,,,,,,
be imported with permission from Ministry of Environment and Forests. This entry includes electrical and electronic assemblies (including,,,,,,,
printed circuit board electronic components and wires) destined for direct re-use and not for recycling or final disposal. The Ministry of,,,,,,,
Environment and Forests has also confirmed that imports of second hand computers would require the permission of that Ministry.,,,,,,,
In view of the above, the Board desires that the field formations should carefully and strictly implement the provisions of Hazardous",,,,,,,
Waste (Management, Handling and Transboundary) Rules, 2008. In particular, it should be noted that all imported goods falling within the",,,,,,,
purview of entry B1110 of Part B of Schedule III of the said Rules, indicating second hand computers, would require the permission of the",,,,,,,
Ministry of Environment and Forests for import into India. It merits mention that the field formations should also refer to Rule 17 of the said,,,,,,,
Rules that treats contravening imports as illegal traffic requiring the importer to re-export the wastes at his cost within 90 days from the date,,,,,,,
of arrival. We must ensure that India does not become a destination for dumping junk electronic products.,,,,,,,
Therefore while import is basically governed by Customs law, applicability of other laws is looked into by virtue of provision of S.11 of the",,,,,,,
Customs Act 1962. Accordingly, it may be stated that what that is restricted or prohibited in terms of Section 11 of Customs Act 1962 that holds the",,,,,,,
field to deal the imported goods. Object of every notification is defined by the statute under which that notification is issued. Every statute having its,,,,,,,
own object unless otherwise specifically stated cannot be conceived to be either superseded or overrided by any other statute. Therefore hazardous,,,,,,,
waste rule serves the purpose of environment protection and the customs law being a fiscal statute operates in its own field in addition to the,,,,,,,
applicability of various other statutes as required by Section 11 of the Customs Act 1962. No other statute can be considered to make the Customs,,,,,,,
law redundant and otiose. Accordingly classification in all these appeals is to be made according to the spirit of Apex Court judgment in Atul's case,,,,,,,
(supra) and interpretation in Unitech case read with Tariff entries as well as Board's clarification. Consequently revenue's contention that old and used,,,,,,,
multifunctional copying and printing machines are covered under broader classification and DGFT's notification and thus restricted, is upheld and the",,,,,,,
appeals. Revenue succeeds in all,,,,,,,
In the result all the appeals of Revenue are allowed.,,,,,,,
Sd/-,,,,,,,
31.3.2014,,,,,,,
(Manmohan Singh),,,,,,,
Member (Technical),,,,,,,
Difference of Opinion,,,,,,,
Whether the Digital Multifunction printing and photocopying machines imported prior to 6.6.2012 do not require a license for importation of the same,,,,,,,
as held by Member (Judicial) or the same require a license for importation as held by Member (Technical)?,,,,,,,
Sd/-,,,,,,,
31.3.2014,,,,,,,
(Manmohan Singh),,,,,,,
Member (Technical),,,,,,,
Sd/-31/3/14 (Archana Wadhwa),,,,,,,
Member (Judicial),,,,,,,
(Pronounce),,,,,,,
CC, New Delhi vs. M/s. Asian Copiers And Ors. Date-7/11/2014",,,,,,,
Per Rakesh Kumar:,,,,,,,
Heard both the sides on the point of difference.,,,,,,,
,Import policy,"Conditions, if any",,,,,
I. Second-Hand Capital Goods Group
(a) Restricted category",,,,,,,
(i) Personal computers/ laptops
(ii) Photocopier machines/ Digital
multifunction print & copying
machines.
(iii) Air-conditioners
(iv)Diesel generating sets",Restricted,"Allowed to be imported only as per
provisions of FTP, ITC(HS), HBP
v1, Public Notice or an
Authorisation issued for import of
the specified second-hand item.",,,,,
(b) Free category,,,,,,,
(i) Refurbished/ reconditioned
spares of capital goods",Free,"Subject to conditions specified in
para 2.33 of HBPv1.",,,,,
(ii) All other second-hand capital
goods.",Free,,,,,,
II. All other Second-Hand
Goods.",Restricted.,,,,,,
Import of second hand capital goods, including refurbished/re-conditioned spares shall be allowed freely. However, second hand personal",,,,,,,
computers /laptops, photocopiers machines, air conditioners, diesel generating sets will only be allowed against a licence"".",,,,,,,
Thus, it will be seen that while during the period prior to 5.6.2012, para 2.17 mentioned among other items, the second hand photocopier machines",,,,,,,
as the items which could be imported only against import licence1 during the period w.e.f. 5.6.2012, in addition to the second hand photocopier",,,,,,,
machines, the second hand multifunction machines were also put in the restricted category. The point of dispute is as to whether the term 'photocopier",,,,,,,
machines' also covered the multifunction machines. Though a Division Bench of the Tribunal in the case of Unitech Enterprises (supra) has held in,,,,,,,
para-13 of the judgement, that the word 'photocopier machines' also covers the Digital Multifunction Print and Copier Machines, this issue has also",,,,,,,
been considered by the Hon'ble Madras High Court in the case of Anand Impex Vs. Commissioner reported in 2012 (281) ELT 179 (Mad.) and Sai,,,,,,,
Graphic Systems (supra) and in both these judgements, the Hon'ble High Court has held that the import of second hand multifunction machines",,,,,,,
became restricted only w.e.f. 5.6.2012 and before 5.6.2012, these second hand capital goods could be imported without any import licence. When on a",,,,,,,
particular issue, there is a judgement of particular High Court and there is no contrary judgement of any other High Court, that judgement of the High",,,,,,,
Court is,,,,,,,
binding on the Tribunal.,,,,,,,
Moreover, it is seen that amendment to para 2.17 of the Exim Policy so as to specifically include the import of second hand Digital Multifunction",,,,,,,
Print and Copier Machines in the restricted category had been preceded by a recommendation in this regard made by the Technical Review,,,,,,,
Committee held on 16.11.2011 in the minutes of its meeting. In this regard para-5 of the minutes of the meeting are reproduced below:-,,,,,,,
It was also informed that in the Exim Policy, there is no specific mention about multifunction devices. There are separate ITHS codes for",,,,,,,
multifunction devices and the photocopier machines. While discussing the issue, DIT representative mentioned that the basic function of",,,,,,,
multifunction devices is for photocopying as the import of photocopier and machines is restricted, therefore, import of multifunction devices",,,,,,,
also needs to be placed in the same category in the policy. All the members agreed that DGFT may be requested to include the import of,,,,,,,
multifunction devices under the restricted list.""",,,,,,,
Thus, the Technical Review Committee of the Ministry of Environment and Forest in meeting held on 16.11.2011 considered the photocopier machines",,,,,,,
and multifunction machines as different goods, though with similar function and recommended putting restrictions on import of second hand",,,,,,,
multifunction machines. In fact, if the word ‘photocopier machines’ also covered the “Digital Multifunction Print and copying machinesâ€,",,,,,,,
there would have been no necessity for the DGFT to specifically include the second-hand multifunction machines in Para 2.17 of the EXIM Policy.,,,,,,,
In view of the above discussion, I agree with the decision of the Member (Judicial). The point of difference referred stands answered as above.",,,,,,,
Sd/- (Rakesh Kumar),,,,,,,
Member (Technical),,,,,,,
FINAL ORDER No. 50657-50662/2015,,,,,,,
Per : Archana Wadhwa:,,,,,,,
In view of the Majority Order, all the appeals filed by the Revenue are rejected.",,,,,,,
(Pronounced 18/2/15),,,,,,,