2013 (11) TMI 543 - AT - Customs

Confiscation of goods - Penalty u/s 112 - Import of 21 used photocopiers of various models - Restricted items for import under para 2.17 of the FTP 2004-09 - Whether Photocopiers were freely importable or required a licence SCN issued alleging that Used Photocopying Machines were restricted items for import under para 2.17 of the FTP 2004-09 r.w. circular No. 20/05 Held that - DGFT has no authority to issue clarification that the import of photocopiers is restricted and such action could be taken only by the Central Government by issuing a Notification and this was done on 19-10-2005. Therefore in 2004, when the photocopiers were imported by the appellant, the same cannot be considered as restricted being capital goods. Therefore, photocopiers imported by the appellant have to be held as freely importable at the relevant time of import and the decision of the lower authorities in this regard cannot be sustained - Following decision of Atul Commodities Pvt. Ltd. v. Commissioner of Customs, Cochin 2009 (2) TMI 18 - SUPREME COURT - Decided in favour of assessee.

Summary

Issues:
1. Import of used photocopiers and valuation discrepancy.
2. Confiscation of goods under Customs Act.
3. Imposition of fine and penalty.
4. Validity of import restrictions on photocopiers.

Analysis:
1. The appellant imported 21 used photocopiers, and during assessment, a lower value than the contemporary import price was found. The value was revised to Rs. 12,32,066, accepted by the appellant. The issue arose when it was alleged that the import of second-hand photocopiers contravened the Foreign Trade Policy, specifically paragraph 2.17, as per a DGFT circular. The original authority confiscated the goods under Section 111(d) of the Customs Act, allowing redemption on payment of a fine and penalty. The appellant challenged this decision.

2. The appellant argued that the import of second-hand photocopiers was settled by a Supreme Court decision, stating that photocopiers are capital goods and cannot be restricted by DGFT circulars. The lower authorities' decision to confiscate the goods and impose penalties was contested by the appellant based on this argument.

3. The Superintendent (AR) contended that despite the goods not being liable for confiscation based on the Supreme Court decision, the confiscation and penalty were justified due to undervaluation. The undervaluation, unchallenged by the appellant, warranted the penalty and confiscation, as per the Superintendent's submission.

4. The Tribunal analyzed the submissions and referenced the Supreme Court decision, which clarified that DGFT lacked the authority to restrict photocopier imports through circulars. Only the Central Government could issue such restrictions via notifications. As the photocopiers were imported before the relevant notification, they were not restricted goods. The Tribunal found that the lower authorities' decision could not be upheld in this context.

5. Regarding the confiscation and penalties, the Tribunal noted the specific sections of the Customs Act related to confiscation for undervaluation. While undervaluation could lead to confiscation under Section 111(m), the original authority failed to consider this aspect in the Order-in-Original. Consequently, the Tribunal concluded that the original authority did not contemplate confiscation or penalties for undervaluation. Thus, the Tribunal rejected the Superintendent's argument and allowed the appeal, providing relief to the appellant.

6. In conclusion, the Tribunal allowed the appeal, emphasizing that the photocopiers were freely importable at the time and that the confiscation and penalties were not justified based on undervaluation. The decision provided consequential relief to the appellant, overturning the lower authorities' rulings.