2009 (9) TMI 451 - AT - Customs

EXIM- Import of second hand goods- This appeal is preferred by the Revenue. The facts of the case are that the respondent, had imported secondhand Video Games and filed a Bill of Entry claiming that the goods are capital goods, which are freely importable as per Para 2.17 of the Exim Policy 2004-2009. The original adjudicating authority agreeing that those secondhand capital goods by referring to Paras 9.12, 9.52, 9.53 of the Chapter 9 of the Exim Policy 2004-2009 and held that though were imported against which no foreign exchange earning was there. Therefore, the goods were confiscated and in violation of Para 2.17 of the Exim Policy and redemption fine and penalty were imposed. Aggrieved from the same, the respondents preferred an appeal before the Commissioner of Customs, who allowed the appeal holding that the goods are secondhand goods, which do not require any import licence and fine and penalty imposed on the respondents were dropped. Against the said order, the Revenue is in appeal before us. Held that- the impugned goods can be imported as capital goods under Para 2.17 of the Foreign Trade Policy 2004-2009 without licence under Para 2.33 of the Handbook of Procedures 2002-07 and the DGFT Circular No. 16 dated 29-9-2003. Further, we do not find any infirmity in the impugned order, the same is upheld and the appeal filed by the Revenue is dismissed.

Summary

Issues:
Import of secondhand Video Games as capital goods under Para 2.17 of the Exim Policy 2004-2009.

Analysis:
The appeal involved a dispute regarding the classification of imported secondhand Video Games by M/s. Timezone Entertainment Pvt. Ltd. as capital goods under Para 2.17 of the Exim Policy 2004-2009. The original adjudicating authority confiscated the goods, citing a violation of Para 2.17 due to no foreign exchange earnings against the import. However, the Commissioner of Customs allowed the appeal, stating that secondhand goods do not require an import license. The Revenue contended that the goods did not earn foreign exchange and thus could not be considered capital goods under the Foreign Trade Policy 2004-2009. The respondent argued that the import of secondhand capital goods was permissible under Para 2.17 and Handbook of Procedures (Vol.1) 2004-2009, emphasizing that Chapter 9 of the Foreign Trade Policy did not apply to their case. The respondent relied on precedents like Abbott Healthcare Pvt. Ltd. and Atul Commodities Pvt. Ltd. to support their position that the goods were indeed capital goods and freely importable under the Exim Policy.

The Tribunal carefully considered the arguments presented by both parties and concluded that the imported goods could be classified as capital goods under Para 2.17 of the Foreign Trade Policy 2004-2009, without the need for a license as per Para 2.33 of the Handbook of Procedures 2002-07 and DGFT Circular No. 16 dated 29-9-2003. The Tribunal upheld the decision of the Commissioner of Customs, dismissing the appeal filed by the Revenue. The judgment emphasized the permissibility of importing secondhand capital goods under the relevant policy provisions and circulars, ultimately ruling in favor of the respondent, M/s. Timezone Entertainment Pvt. Ltd.