2014 (6) TMI 749 - AT - Customs

Confiscation of goods - Redemption fine - Import of photocopier machines - Non obtaining of license - Held that - As per the Notification 31/2005 and the import of 2nd hand photocopier machines is required license prior to the import. Admittedly, in this case the appellant has not obtained the license. - the Notification is a binding force as observed by the Hon ble Apex Court in para 21 in the cased of Atul Commodities Pvt. Ltd. (2009 (2) TMI 18 - SUPREME COURT) - there is no infirmity in the impugned order for holding that the impugned goods are restricted at the time of their import. - impugned goods are liable for confiscation which can be redeemed on payment of redemption fine and penalty. - However, penalty imposed on the appellant is on the higher side. Therefore, relying on the decision in the case of CC v. Dilip Ghelani 2009 (2) TMI 681 - CESTAT, BANGALORE - redemption fine and penalty imposed on the appellant by the adjudicating authority reduced to 10% and 5% respectively - Decided partly in favour of assessee.

Summary

Issues:
Appeal against imposition of redemption fine and penalty under Section 111(d) of the Customs Act, 1962 for importing 2nd hand photocopiers without the required license as per Foreign Trade Policy 2004-2009.

Analysis:
The appellant imported 2nd hand photocopiers as capital goods but did not obtain the necessary license as per para 2.17 of the Foreign Trade Policy 2004-2009. The Revenue held the goods liable for confiscation and imposed redemption fine and penalty under Section 111(d) and 111(m) of the Customs Act. The appellant challenged this decision, citing a Supreme Court judgment in the case of Atul Commodities Pvt. Ltd., which stated that old and used photocopier machines covered under para 2.17 do not require a license for import. The appellant argued that redemption fine and penalty should not be imposed.

The opposing view highlighted Notification NO.31/2005, which mandated a license for the import of 2nd hand photocopier machines. The argument was made that the Atul Commodities Pvt. Ltd. judgment was not applicable to this case as it predated the issuance of Notification 31/2005. The Notification was considered binding, unlike Circulars and clarifications. The lower authorities' decision to confiscate the goods and uphold the redemption fine and penalty was supported based on the binding nature of the Notification.

The Tribunal analyzed the Notification and the Atul Commodities Pvt. Ltd. judgment, emphasizing the requirement of a license for importing 2nd hand photocopier machines post the issuance of Notification 31/2005. It was noted that the appellant had not obtained the necessary license, making the goods liable for confiscation. The Tribunal upheld the decision to impose redemption fine and penalty but reduced the amounts based on a previous case precedent.

In conclusion, the Tribunal found no fault in holding the goods liable for confiscation due to the lack of a required license for importing 2nd hand photocopier machines as per the relevant Notification. The redemption fine and penalty were upheld but reduced based on precedents. The appeal was disposed of accordingly.