The Commissioner of Customs vs Rasi Offset Printers

N. Kumar, J.—The Revenue has challenged in this appeal, the order passed by the Tribunal which has allowed the appeal of the Assessee and has held, the second hand photocopier machine is freely importable and therefore confiscation of the said material, imposition of fine and penalty is not justified.

The Assessee has imported used photocopier/photocopying assembly, separately under different bills. The original adjudicating authority passed an order holding that the goods so imported were liable for confiscation u/s 111(d) and (m) of the Customs Act, 1962 r/w Section 3(2) and 3(3) of the Foreign Trade (Development and Regulation) Act, 1992, with an option to redeem the same on payment of fine under the provisions of Section 125 of the Customs Act, 1962 and also imposed penalties on the Assessee-tinder the provisions of Section 112(a) of Customs ''Act, 1962. Aggrieved by the said order, the Assessee preferred an appeal to the Commissioner (Appeals) to uphold the said order. Aggrieved by the said order, the Assessee preferred an appeal to die Tribunal. The Tribunal held that the issue is fully covered in terms of the larger bench judgment rendered in the case of Atul Commodities (P) Ltd. and Ors. v. CC Cochin (2005 (100) ECC 409 (Tri-LB), which has held that the import of second hand photocopier machine is to be treated as capital goods and not as consumer goods and hence it does not require procurement of license in terms of the EXIM Policy. They are freely importable and hence the goods cannot be confiscated. Appellants had not challenged the enhancement of the value. Therefore the appeals are allowed only to the extent of setting aside fine and penalty, with consequential reliefs. Aggrieved by the said order, the Revenue has preferred this appeal.

Learned Counsel for the Revenue relied on Annex.D and contended that as per para 2.17 of the EXIM Policy 2002-2007, it is not freely importable. As Annex.D was not clear and it referred only to personal computers and laptops, we requested the counsel to make available the EXIM Policy 2002-2007, so that we could find out what exactly para 2.17 means and adjourned the case to today. Today, the learned Counsel has produced the extract containing Chapter-2 of the EXIM Policy 2002-2007 which deals with general provisions regarding imports and exports. In the same, we do not find para 2.17. Learned Counsel referred to page 6 where it is stated as under:

Second Hand Goods: All second hand goods shall be restricted for imports and may be imported only in accordance with the provisions of this Policy, ITC(HS), Handbook (Vol.1), Public Notice or a licence/certificate/permission issued in this behalf.

Then he pointed out to Handbook of Procedures -(Vol.1), 1st September 2004 - 31st March 2009, w.e.f. 1/4/2006. In that, 2.17 reads as under:

Interviews with authorised Officers: Importer/Exporter and their employees shall have free access to the offices of the Regional authorities and to the officers authorised to grant interviews. Such officers may also grant interview at their discretion to authorized representative of the importer/exporter for making specific representation. Interviews/clarifications may also be sought through E-mails with the officer concerned.

which has no relevance, as far as this case is concerned. However, import of second hand capital goods are dealt with at 2.33, which reads thus:

Import of Second Hand Capital Goods: Import of second hand capital goods including refurbished/reconditioned spares, shall be allowed freely, subject to conditions for the following categories

The Import of second hand computers including personal computers and laptops are restricted for imports.

The import of refurbished/reconditioned spares will be allowed on production of a Chartered Engineer certificate that such spares have a residual life, not less than 80% of the life of the original spare.

A perusal of the same makes it clear that import of second hand capital goods shall be allowed freely, subject to conditions for the following categories, i.e. import of second hand computers including personal computers and laptops are restricted for imports. Therefore the category referred to therein do not apply to a second hand copier. A certificate is insisted in respect of import of refurbished/reconditioned spares on production of a Chartered Engineer certificate that such spares have a residual life not less than 80% of the life of the original spare, which is not the case in hand. More over the said handbook of procedure carne into effect from 1/4/2006 and it is for the period 1/9/2004 to 31/3/2009. We are concerned with a period anterior to that. The handbook of procedure, dealing with the period which is involved in this case, is not produced. We are completely kept in dark to what 2.17 says, for the period anterior to the handbook procedure. In these circumstances, we are forced to act on what the Tribunal has held, holding that the Tribunal was justified in passing the impugned order i.e., the goods which are imported are capital goods and the second hand copier being capital good, the import, of it is free of cost and therefore the imposition of penalty and fine is unjustified and.

No grounds. Thus the substantial question of law is answered in favour of the Assessee and against the revenue. No Costs.