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TMI Blog2009 (3) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... been held liable to confiscation in terms of Section 111(d) of the Customs Act, 1962 read with Section 3(3) of Foreign Trade (Development Regulation) Act, 1992 for import without specific licence and in terms of Section 111(m) for misdeclaration of value, and the value of the goods has been enhanced; penalty has also been imposed upon the importers under Section 112 ibid, as per the details set out in the annexure to this order. 2. We have heard both sides. The contention of the importers that the goods imported by them were freely importable and their import did not require to be covered by a licence is to be accepted, in the light of Apex Court s judgement dt. 24-2-09 in Civil Appeal No. 2999/2007 etc. in the case of M/s. Atul Commodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfusion. Therefore, DGFT stepped in to clarify that second-hand photocopying machines, irrespective of the period of use, shall fall in the restricted category (see Policy circular No. 19/03). Para 1 of Policy Circular No. 20/05 recites that photocopying machines are not to be imported without a licence even if they are less than 10 years old and even if the photocopying machines are imported for service providers. Vide Para 3, the Policy circular No. 20/05 clarifies that second-hand photocopying machines are covered under the definition of second-hand goods , therefore, their import shall be governed by the provisions of para 2.17 of the Policy and shall not be permitted to be imported under Para 5.1 of the Policy. Reverting to Para 2.17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Para 2.17 (particularly in the light of the last statement in the said para, which we have underlined hereinabove. 21. One more aspect needs to be mentioned. Para 2.33 expressly states that import of old and used computers/second-hand computers are restricted. Para 2.33 of the Handbook do not restrict photocopying machines-Import of photocopying machines are expressly restricted only by Notification No. 31 dated 19-10-2005. This itself indicates that categorization/re-categorization cannot be done by policy circulars. Such exercise has to be undertaken by specific amendment to the Policy vide Section 5 of the 1992 Act. In this case, Notification No. 31 dated 19-10-2005 indicates that the Central Government has brought in photocopying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the rejection of evidence in the form of supplier s Chartered Engineer s certificate in support of the transaction value on the basis of subsequent opinion of another expert is not justifiable and that the opinion of one expert cannot be rejected on the basis of opinion of another expert unless there is sufficient independent reason for such rejection. The appeal of the department against the above order was dismissed by the Apex Court as seen from 2005 (182) E.L.T. A92 (S.C.) and hence the Tribunal s decision cited (supra) has attained finality. Further, it has not been shown as to how the import falls within the special circumstances statutorily particularized under Rule 4(2) of the Customs Valuation (Determination of Price of Imported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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