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TMI Blog2009 (3) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of Price of Imported Goods) Rules, 1988 so as to reject the transaction value - we set aside the enhancement of the value of the goods imported as not sustainable - appeal allowed - decided in favor of appellant. - C/146 and 148/2004 - 505-506/2009 - Dated:- 31-3-2009 - Ms. Jyoti Balasundaram, Shri P. Karthikeyan, JJ. REPRESENTED BY : Smt. S. Sridevi, Advocate, for the Appellant. S/Shri V.V. Hariharan, JCDR and M.K.A.K. Mohiddin, JDR, for the Respondent. [Order per : Jyoti Balasundaram, Vice-President]. In the above cases, the common issues involved are free importability of old and used photocopiers imported by the appellants herein and the valuation thereof. The goods have been held liable to confiscation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged before the Supreme Court) holding that import of secondhand photocopiers prior to 19-10-05 also warranted a licence for import. The relevant extract from the Apex Court s judgment is reproduced herein below :- 20. Policy circular No. 20/05 appears to be in continuation of Policy circular Nos. 16/03 and 19/03. In this connection, para 1 of Policy circular No. 20/05 requires to be noted. As stated above, under FTP (2002-07) import of second-hand goods could be made only against a licence. They came in the restricted category. However, in the Handbook (2002-07) it was inter alia provided that old and used capital goods which were not more than 10 years old could be imported freely. Those goods, therefore, were treated as new goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, one has to give weightage to the second part of para 2.17 which allows free import of second-hand capital goods. What is not permitted vide para 3 of the Policy circular no. 20/05 is importation under EPCG. As stated above, in this case, we are concerned with imports under general category and not under EPCG. We are in agreement with the view expressed by the Larger Bench of the Tribunal that photocopying machines are capital goods as defined under para 9.12. The Tribunal has held that the use of these machines for rendering services makes them capital goods. In fact, this finding on the user is not challenged by the Department. Therefore, import of old and used photocopying machines stands covered by the concept of second- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Valuation has been adopted. There is no evidence that the importers paid any money in excess to the supplier or to the effect that they had purposely misdeclared the value of the goods in order to evade payment of duty. The Revenue has not established any of the circumstances contemplated in Rule 4(2) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 so as to reject the transaction value, in the light of the Apex Court s decision in Eicher Tractors Ltd. v. CC Mumbai, 2000 (122) E.L.T. 321 (S.C.) which has been followed in Tolin Rubbers Pvt. Ltd. v. CC Cochin, 2004 (163) E.L.T. 289 (S.C.) and by the Tribunal in Balaji Office Equipment v. CC Chennai, 2007 (216) E.L.T. 611 (Tri.-Chennai) and Oswal Fats Oil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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