2011 (5) TMI 791 - AT - Customs

Confiscation and penalty - appellant had imported computer peripherals without any import licence. According to the department the above items are second-hand capital goods - Held that - any restriction to importation of secondhand capital goods could be placed only by an amendment in Policy by the Central Government and not by Policy Circulars issued by DGFT. The aforesaid Policy Circulars of the DGFT were held to be only clarificatory and not mandatory order is set aside and this appeal is allowed appeal stands disposed of

Summary

Issues:
Import of computer peripherals without a license, confiscation of goods under Customs Act, imposition of penalty, interpretation of import regulations on second-hand capital goods, challenge against redemption fine and penalty, valuation issue.

Analysis:
1. The appellant imported computer peripherals without an import license, leading the department to propose confiscation of the goods under Section 111(d) of the Customs Act and imposition of a penalty under Section 112. The original authority ordered confiscation with an option for redemption upon payment of a fine. The penalty was also imposed on the importer. The appeal filed by the assessee resulted in a reduction of the fine and penalty by the learned Commissioner (Appeals). The current appeal challenges the appellate Commissioner's order upholding the original order on merits.

2. The impugned order by the learned Commissioner (A) relied on a judgment of the Hon'ble High Court of Kerala, which considered DGFT's Circulars and held that import of second-hand capital goods required a valid license as clarified in the circulars. However, the Apex Court overruled this view, stating that any restriction on importing second-hand capital goods must be through an amendment in Policy by the Central Government, not through Policy Circulars issued by DGFT. The Supreme Court held that the DGFT Circulars were clarificatory and not mandatory, benefiting the appellant based on this judgment.

3. The impugned order was set aside, and the appeal was allowed concerning the challenge against redemption fine and penalty. On the valuation issue raised in the appeal, it was noted that the appellant had accepted the value enhancement during assessment and first challenged it before the Commissioner (A). Since there was no objection raised against the value enhancement before the original authority, the Appellate Commissioner's findings on this matter were not interfered with.

4. The appeal was disposed of accordingly, with the judgment pronounced and dictated in open court.