2022 (9) TMI 1049 - AT - Customs

Seeking provisional release of imported goods - used Digital Multifunctional Printers / Devices (MFDs) - prohibited goods or not - non-compliance with the provisions of Domestic laws under the Bureau of Indian Standards (BIS) Act, 2016 read with the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order (CRO), 2012 - failure to obtain DGFT authorization as required for the import of second hand goods - misdeclaration of value of the imported used MFDs in violation of Section 14 of the Customs Act, 1962 - HELD THAT - The Hon ble Apex Court in M/S DELHI PHOTOCOPIERS VERSUS THE COMMISSIONER OF CUSTOMS (GR. 5) CHENNAI II ORS. 2021 (8) TMI 1244 - SUPREME COURT , while staying confiscation of the goods in view of the fact that the Notification dated 01.04.2020 was the subject matter of controversy before the Apex Court, had allowed the provisional release of the goods involved. This Court in COMMISSIONER OF CUSTOMS VERSUS M/S S.P ASSOCIATES, ARIHANT ENTERPRISES, EXCEL COPIERS, CITY OFFICE EQUIPMENTS, PHOTOFAX SYSTEMS, SKYLARK OFFICE MACHINES, STAR COPIERS, SRK OVERSEAS, RANK OFFICE AUTOMATION, PRIUS TECHNOLOGIES, GENUINE COPIER SYSTEMS, AMAR ENTERPRISES, ATUL AUTOMATION PVT. LTD., DELHI PHOTOCOPIERS, KUTTY IMPEX, PHOTO FAX SYSTEM, GEE KAY COMPUTERS AND BEST MEGA INTERNATIONAL) 2021 (9) TMI 183 - CESTAT CHENNAI while considering an almost identical issue, has held that It is undisputed that the goods were second hand in nature and were examined by the Customs under first check and were verified by expert Chartered Engineer and the import duty was recalculated accordingly under CVR 2007. Neither side is disputing the valuation. Therefore, the valuation of the imported goods does not call for any interference. This Bench has also held that the valuation which was not disputed by either of the parties did not call for any interference. With regard to the goods in question being hazardous in nature within the meaning of the provisions of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2008, the Bench has observed that the goods in question were useful goods with residual life and therefore, cannot be called as hazardous waste . The facts being identical, as canvassed at the bar, there are no reasons to deviate from the findings arrived at by this Bench in the case of M/s. S.P. Associates and hence, the First Appellate Authority has correctly ordered provisional release of the impugned goods. When goods are held not confiscatable under Section 111(d) ibid., then it can be reasonably held that the import was not prohibited. The appeal filed by the Revenue, being devoid of merits, is dismissed.

Summary

Issues:
1. Appeal against Order-in-Appeal Seaport C.Cus. II No. 184/2022 dated 31.03.2022.
2. Compliance with Domestic laws under BIS Act, 2016 and Customs Act, 1962.
3. Confiscation of goods, re-determination of value, redemption fine, and penalties.
4. Provisional release of impugned goods based on previous judgments.

Issue 1: Appeal against Order-in-Appeal
The appeal was filed by the Revenue against the Order-in-Appeal Seaport C.Cus. II No. 184/2022 dated 31.03.2022 passed by the Commissioner of Customs (Appeals-II), Chennai. The First Appellate Authority allowed the appeal filed by the respondent-assessee and ordered provisional release of the impugned goods.

Issue 2: Compliance with Domestic laws
The Adjudicating Authority found that the respondent had not complied with the provisions of Domestic laws under the Bureau of Indian Standards (BIS) Act, 2016, failed to obtain DGFT authorization for the import of second-hand goods, and mis-declared the value of the imported used MFDs in violation of Section 14 of the Customs Act, 1962.

Issue 3: Confiscation of goods, re-determination of value, redemption fine, and penalties
The Adjudicating Authority re-determined the value of the imported goods, confiscated 502 units of goods, imposed a redemption fine, and penalties under various sections of the Customs Act, 1962. The penalties were imposed for rendering the goods liable for confiscation and non-compliance with customs procedures.

Issue 4: Provisional release of impugned goods based on previous judgments
The First Appellate Authority ordered provisional release of the impugned goods by following the order of the CESTAT in a previous case and a decision of the Hon'ble Apex Court. The Tribunal, after considering the rival contentions and previous judgments, upheld the provisional release of the goods, stating that if goods are not confiscatable under Section 111(d) of the Customs Act, then the import was not prohibited.

In conclusion, the appeal filed by the Revenue was dismissed as it was deemed devoid of merits based on the findings of previous judgments and the lack of reasons to deviate from those findings. The provisional release of the impugned goods was upheld, and the order was pronounced in the open court on 23.09.2022.