2001 (5) TMI 309 - AT - Central Excise

Issues Involved:
1. Jurisdiction of Customs Authorities.
2. Violation of Import Policy.
3. Imposition of Penalties and Redemption Fines.
4. Transfer of Second-Hand Knitting Machines Without DGFT Permission.
5. Bona Fide Purchases and Actual Users.

Issue-Wise Analysis:

1. Jurisdiction of Customs Authorities:
The appellants contested the jurisdiction of Customs Authorities, arguing that violations of the Import Policy should be investigated under the Foreign Trade (Development & Regulation) Act, 1992, by the Directorate General of Foreign Trade (DGFT) officers. The adjudicating authority and the Tribunal upheld the Customs' jurisdiction, noting that the importers were required to file declarations with the Customs at the time of clearance, making the Customs' involvement legitimate. The Tribunal agreed with the adjudicating authority that the Customs had the jurisdiction to address violations of post-importation conditions specified in the Import Policy.

2. Violation of Import Policy:
The main allegation was that the second-hand knitting machines were transferred to other persons within five years from the date of import without prior DGFT permission, violating para-5.4 of the Handbook. The importers argued that the transactions were in the regular course of business, payments were made by cheques, and the only possible violation was not obtaining prior DGFT permission. The Tribunal noted that the Import Policy allowed the import of second-hand capital goods without a license, provided certain declarations were made, and the goods were not transferred within five years without DGFT permission. The Tribunal found that the infringement was of a post-importation condition rather than a violation of the Customs Act.

3. Imposition of Penalties and Redemption Fines:
The adjudicating authority imposed varying amounts of penalties and redemption fines, holding the goods liable for confiscation under Sections 111(d) and 111(o) of the Customs Act and the noticees liable for penal action under Section 112 of the Act. The Tribunal, considering the nature of the infringement and the facts, reduced the penalties imposed on Shri Prashant Mohan and Shri Ramesh Savlani to Rs. 2,00,000/- each and set aside the penalties imposed on Shri Nirmal Surekha, Shri Iqbal Singh, and Shri Subhash Malhotra. The redemption fines imposed on different firms were also set aside.

4. Transfer of Second-Hand Knitting Machines Without DGFT Permission:
The show cause notice alleged that the second-hand knitting machines were transferred without DGFT permission. The importers provided various explanations, including that the machines were not transferred but kept in other premises for lack of space or job work. The Tribunal found that the importers had complied with the necessary formalities at the time of import, and the only violation was not obtaining prior DGFT permission, which was considered a technical infringement.

5. Bona Fide Purchases and Actual Users:
The buyers of the machines argued that they were bona fide purchasers, had paid the due price by account payee cheques, and were actual users who could import such machines themselves. The adjudicating authority noted that the transactions were made through statutory channels, and there was no evidence to suggest that the buyers were aware that the machines were liable for confiscation. The Tribunal agreed, noting that the buyers were not liable for penal action under Section 112(b) of the Act.

Conclusion:
The Tribunal concluded that the infringement was of a post-importation condition specified in the Import Policy and not of any provisions of the Customs Act. The penalties and redemption fines were accordingly reduced or set aside, and the appeals were disposed of in these terms.

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