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TMI Blog2013 (11) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - C/320/2007 - Final Order No. 25228/2013 - Dated:- 22-3-2013 - Shri B.S.V. Murthy, J. Shri R. Dakshina Murthy, Advocate, for the Appellant. Shri N. Jagdish, Superintendent (AR), for the Respondent. ORDER The appellant imported 21 used photocopiers of various mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court, the confiscation is sustainable and the penalty is imposable in view of the fact that the goods were undervalued. The undervaluation has not been challenged by the appellant at all and, therefore, penalty was imposable and goods are liable to confiscation. 4. I have considered the submissions made by both sides. As submitted by the learned counsel, the Hon'ble Supreme Court in the case of Atul Commodities Pvt. Ltd. (supra) has held that the 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of acceptance of undervaluation by the appellant at the time of original adjudication proceedings. However, unfortunately, the original adjudicating authority nowhere in the Order-in-Original has considered this aspect for taking a view that the goods are liable to confiscation. Neither in the findings nor in the order, the provisions relating to undervaluation and consequence thereof have been considered. In these circumstances, the only conclusion that can be reached is that the original authority did not contemplate confiscation of goods or imposition of penalty as far as undervaluation is concerned. In these circumstances, the submission of the learned Authorised Representative has to be rejected. 6. In view of the above discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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