9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2006 (4) TMI 140 - HC - CustomsEXIM Policy - Import of Second-hand photocopiers - capital goods or consumer goods - licence - HELD THAT - We are of the view, second-hand photocopier machines imported by the importer would also be governed by the above-mentioned circulars the exemption which we have already stated is with regard to the import of new photocopier machines, under EPCG Scheme provided they are required for manufacturing of goods or rendering services. The goods imported by the importer will not fall under that category. Consequently the order passed by the Tribunal cannot be sustained and the same stands set aside. We have already found that the importer is bound by the policy Circulars No. 16/03, 19/03 and 20/05 and the second-hand photocopier machines are second-hand goods and are not freely importable as capital goods , the only exemption is with regard to the import of new photocopier machines, provided they are imported under EPCG Scheme and are required for manufacturing of goods or rendering services. Thus, we are inclined to allow these appeals and set aside the orders passed by the Tribunal.
Issues Involved:
1. Classification of second-hand photocopiers as capital goods or consumer goods. 2. Requirement of a license for importing second-hand photocopiers. 3. Applicability of paragraph 2.17 of the Export Import Policy 2004-2009. 4. Validity and applicability of DGFT circulars (16/03, 19/03, and 20/05). Detailed Analysis: 1. Classification of Second-Hand Photocopiers: The primary issue is whether second-hand photocopiers are classified as capital goods or consumer goods. The Tribunal ruled that second-hand photocopiers are capital goods under paragraph 9.12 and freely importable under paragraph 2.17 of the Export Import Policy 2004-2009, not consumer goods. However, the High Court disagreed, stating that the DGFT circulars (16/03 and 19/03) clarified that second-hand photocopiers are considered second-hand goods, not capital goods, and thus their import is restricted without a license. 2. Requirement of a License for Importing Second-Hand Photocopiers: The Commissioner of Customs argued that second-hand photocopiers require an import license under paragraph 2.17 of the Foreign Trade Policy. The Tribunal initially ruled against this, but the High Court upheld the Commissioner's view, emphasizing that DGFT circulars mandate a license for such imports. The High Court noted that the policy circulars are binding and clarified that the import of second-hand photocopiers without a license is not permissible. 3. Applicability of Paragraph 2.17 of the Export Import Policy 2004-2009: The High Court examined whether paragraph 2.17 applies to the import of second-hand photocopiers. The Tribunal's interpretation that second-hand photocopiers are freely importable under paragraph 2.17 was overturned by the High Court. The High Court concluded that paragraph 2.17 restricts the import of second-hand goods, including photocopiers, without a license, aligning with the DGFT circulars. 4. Validity and Applicability of DGFT Circulars (16/03, 19/03, and 20/05): The High Court addressed the validity and applicability of DGFT circulars clarifying the import policy. The Tribunal's view that these circulars only applied to imports under the EPCG Scheme was rejected. The High Court affirmed that the circulars apply to all imports of second-hand goods, including photocopiers, and are binding. The High Court emphasized that the DGFT has the authority to issue such circulars under clause 2.3 of the Foreign Trade Policy, and these circulars are final and binding unless annulled through appropriate legal proceedings. Conclusion: The High Court concluded that second-hand photocopiers are not freely importable as capital goods under paragraph 2.17 of the Export Import Policy 2004-2009 and require an import license. The DGFT circulars clarifying this requirement are valid and applicable to all imports of second-hand photocopiers, not just those under the EPCG Scheme. Consequently, the Tribunal's decision was set aside, and the Commissioner's order to confiscate the goods and impose penalties was upheld.
|
