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TMI Blog2006 (8) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... acture, Sr. No. and other were not there on the machine. (ii) 1995 is embossed on the body of the machine. (iii) 4 steel plates having embossed Royal Zenith were found pasted on the machines and appeared to be freshly pasted and not part of the original machine. (iv) One more plate pasted similarly was found to have the following specifications : 1. Erzeugniskurzzeichen P-54-8 2. Erzeugnis-Nr. 368571/BJ1994 3. Masse 29280 Kg 4. Schaltplane 313.09-04 Made in the German Democratic Republic. 1.2 This lead to an allegation on :- (a) These particulars are freshly engraved on new plates. As such it cannot be said that this is a Royal Zenith machine as declared by the importer. (b) The machinery found to be as per description as given in the Invoice, Packing List etc. in other respects such as size etc. and no part appears to be missing. (c) The value declared by the importer as per their invoice is Rs. 19,96,100/-. However the goods appeared to be highly undervalued due to various factors as given below. It was noticed that the weight of the machines is 34 Mts. Approximately. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Bank attested invoice etc. The importer submitted reply to this stating that - Reference to the aforesaid, the original Catalogue is not available with us and we have already submitted operational manuals from which the machines could be verified. As for terms of payment were initially in advance payment but subsequently on negotiation terms of payment were made to D/A. The original documents is not been released from the bank and we shall submit them in due course of time. The importer has filed to submit the same so far. The importer has not even disclosed the name of the Bank through which documents on payment has been made. (f) In view of this and the facts as discussed above it appears that the value of the imported goods cannot be determined under the provisions of sub-rule (1) of Rule 4 ibid in terms of Rule 10A(1) ibid. 1.4 (a) Since these were old and used machine, it was not possible to determine the value in terms of Rule 5, as the value of identical goods as no old and used goods can be identical No. Contemporary import prices of similar goods were available and as such it was not possible to fix the value in terms of Rules 6 ibid. Further the old and us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines are similar and comparable in terms of Rule 8 ibid. It may further be pointed out that the printing machine, which is compared, is having 4 colours whereas, the imported machine as per the invoice is showing as 5 colour. Market investigations were made by Valuation Committee in this regard and it was found that the value of 5 colour machine can be taken as at least 1.2 times of the value of similar 4 colour machine. Since the value of 4 colour machine is 33 lakhs, the value of 5 colour machine would come to 39,60,000/- accordingly fixed the value of imported machines as above keeping in mind the value of similar imports down loaded from National Import Data Base as also the value of similar printing machine as seen from the Internet. (d) Therefore, it appeared to the Department that the importer has misdeclared the value of the goods rendering the goods liable for confiscation under Section 111(m) of the Customs Act, 1962. (e) Further in terms of para 2.17 of EXIM Policy 2002-2007 which deals with import of second-hand goods, all second-hand goods shall be restricted from imports and may be imported only in accordance with the provisions of this Policy ITC (HS), Handb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. Printing machine used 1 Royal Zenith p54, 5 colour offset printing machine with all standard electrical and mechanical accessories 28 x40 years of manufacture 1995 and serial no. 368571 and 1 used adast dominat 715, 1 colour offset printing machine with all standard electrical and mechanical accessories 19 x26 - year of manufacture 1995 was enhanced to Rs. 42,10,000/- in respect of Bill of Entry No. 0560 dated 4-3-2004. (ii) The goods covered vide Bill of Entry mentioned above were ordered for confiscation under Section 111(d) and 111(m) of the Customs Act, 1962 and an option was given to the importer to redeem the same on payment of redemption fine of Rs. 20 lakhs (Rs. Twenty lakhs only) in lieu of confiscation under Section 125 of Customs Act, 1962. (iii) A penalty of Rs. 5 lakhs (Rs. Five lakhs only) was also imposed on the importer under Section 112(a) of the Customs Act 1962. 1.6 The Notice filed an appeal against the above said order-in-original No. 2/Cus./2004/Commr. dated 26-5-2004. The Hon ble CESTAT, WZB in their Order No. A-45/WZB/05/C-III dt. 22-12-2004 has set aside the impugned order of the Commissioner, Customs Central Excise, Nagpur and direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-application of the adjudicator s mind. 3.1 The question of liability to confiscation arrived under Section 111(d) of Customs Act, 1962 on the ground of the imports being of second-hand capital goods, due to para 9.12 of Exim Policy 2002-2007 and being restricted under para 2.17 of the Exim Policy and printing machinery is not permissible capital goods as per list under para 2.17 of the Exim Policy are issues which the importer before us is contesting that the order is not speaking and that the Commissioner was to follow the opinion given by Export Promotion Council and also that para 2.33 particular import of second-hand capital goods freely and is non-specific. The para 2.32 cannot be a ground to upset the Commissioner following. The order is giving detailed reasons, merely because it does not comments on Policy Circular No. 20 (2004-2005) dated 23-2-05 and 1-1-03 and 29-9-03 and Notification 31/05 dated 19-10-05 pertaining and import of second-hand laptop computer, photocopier etc. as capital goods will not render the order non-speaking as urged by the importer these DGFT clarifications are admittedly not for the machine under import. Printing machines are not listed as ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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