9911796707
TMI Blog2007 (4) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 19,23,871/- and held that the goods are liable for confiscation under Section 112 (d) of Customs Act, 1962 read with Rules 3(2) and 3(3) of the Foreign Trade (Development and Regulation) Act, 1992 with an option to redeem the goods on payment of redemption fine of Rs. 20 lakhs. A penalty of Rs. 5 lakhs was also imposed under Section 112 of Customs Act. The respondents challenged the order of the lower authority before the Commissioner (A). The Commissioner (A) gave a finding that the used photocopiers imported as second-hand capital goods are covered under Para 2.33 of the EXIM Policy for 2003-2007 as all the machines are less than 10 years old. Relying on the decision of the CESTAT in the case of M/s. BE Office Automation Pvt. Ltd Anr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedures. The Original Authority verified the prices of some second-hand machines and found that there is huge difference between the declared price and the verified price. This is a sufficient ground to reject the transaction value. The Commissioner (A) failed to appreciate the inclusion of Rule 10A in the Valuation Rules. (iii) The Commissioner observations that the lower authority has not followed the proper procedure in discarding Rules 5, 6 7 of the Customs Valuation Rules is not correct. The goods being second-hand goods and as the importer failed to submit any evidence documentary or otherwise to conclusively prove the age of the machines. It was not possible to arrive at the assessable value on the basis of Rules 5, 6 and 7. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the order of the Larger Bench of CESTAT in the case of CC, Cochin v. M/s. Atul Commodities Pvt. Ltd. as reported in 2005 (184) E.L.T. 135 (Tri. - LB). With regard to the valuation, he relied on the following decisions : (i) Gajra. Bevel Gears v. CC, Bombay - 2000 (115) E.L.T. 612 (S.C.). (ii) CC, Chennai v. Motor Industries Co. - 2002 (149) E.L.T. 1070 (Tri-Chennai). (iii) Sampurna Graphics (P) Ltd. v. CC, Chennai - 2004 (164) E.L.T. 464 (Tri.-Chennai). (iv) Mercedes Benz India Ltd. v. CC (Appeals), Mumbai - 2005 (182) E.L.T. 121 (Tri. - Mumbai). (v) Rajasthan Textile Mills v. CC, Mumbai - 2004 (168) E.L.T. 127 (Tri. -Mumbai). (vi) Atlas Casting Metal Impregnation v. CC, Hyderabad- 2005 (186) E.L.T. 575 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation and the question of importability of second-hand copiers without licence considering them as second-hand capital goods. The issue of importability of the second-hand photocopier without production of licence was settled by the Larger Bench of the Tribunal in the case of M/s. Atul Commodities. Even though, the said decision has been set aside by the Hon ble Kerala High Court [2006 (202) E.L.T. 392 (Ker.)], the Andhra Pradesh High Court and Calcutta High Court have upheld the same. Since the appellant and this Tribunal are within the jurisdiction of the Andhra Pradesh High Court. In the spirit of judicial discipline, so far as the present case is concerned, we hold that the second-hand photocopiers having life less than 10 years would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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