2011 (9) TMI 628 - HC - Customs

Import of Second hand photocopier original adjudicating held goods liable to confiscation - Tribunal in view of Atul Commodities (P) Ltd. and Ors. v. CC Cochin (2005 - TMI - 54929 - CESTAT, SOUTH ZONAL BENCH, BANGALORE), held that the import of second hand photocopier machine is to be treated as capital goads and not as consumer goods and hence it does not require procurement of license in terms of the EXIM Policy. They are freely importable - Held That - Court affirmed the view of Tribunal answered in favour of the Assessee and against the Revenue.

Summary

Issues:
1. Challenge to Tribunal's order allowing appeal of Assessee regarding import of second-hand photocopier machine.
2. Confiscation of goods, imposition of fine, and penalty under Customs Act and Foreign Trade Act.
3. Interpretation of EXIM Policy regarding import of second-hand goods.

Issue 1: Challenge to Tribunal's Order
The Revenue appealed against the Tribunal's decision allowing the Assessee's appeal, stating that the second-hand photocopier machine is freely importable, hence confiscation, fine, and penalty are unjustified. The Tribunal relied on a Larger Bench judgment, Atul Commodities (P) Ltd. v. CC Cochin, which classified second-hand photocopier machines as capital goods, not requiring a license for import, hence not subject to confiscation. The appeal was allowed to set aside the fine and penalty, with no challenge to the value enhancement.

Issue 2: Confiscation, Fine, and Penalty
The original Adjudicating Authority held the imported goods liable for confiscation under Customs Act and Foreign Trade Act, with an option for redemption on payment of fine and imposition of penalties. The Assessee appealed to the Commissioner and then to the Tribunal, which held the goods as freely importable capital goods, setting aside the fine and penalty. The Revenue challenged this decision, but the High Court upheld the Tribunal's ruling, stating that the import of second-hand copiers as capital goods is free of cost, making the penalties unjustified.

Issue 3: Interpretation of EXIM Policy
The Revenue contended that the EXIM Policy restricts the import of second-hand goods, referring to Para 2.17. However, discrepancies arose regarding the actual content of Para 2.17 in the EXIM Policy 2002-2007. The High Court analyzed the relevant sections of the EXIM Policy and the Handbook of Procedures, concluding that the import of second-hand capital goods, including copiers, is allowed freely, subject to specific conditions not applicable in this case. The Court found that the Handbook in question was not applicable to the period under consideration and upheld the Tribunal's decision based on the classification of second-hand copiers as capital goods.

In conclusion, the High Court dismissed the Revenue's appeal, ruling in favor of the Assessee, emphasizing that the second-hand photocopier machine was rightfully treated as a capital good, making its import free of cost and justifying the setting aside of fine and penalty.