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TMI Blog2011 (8) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... ocopiers to attract the bar of Para 2.17 of the FTP. As the adjudicating authority has found that the machines in question are capable of additional functions, such as printing, etc., when connected to a computer, although confiscation and penalty is to be sustained in the absence of any appeal by the importers against confiscation and penalty, no justification exists for enhancement in the quantum of fine in lieu of confiscation and penalty - Further, there is no finding that the importers had made any payment over and above the invoice value and the value arrived at by the Chartered Engineer is only an estimated value and in his report in the case of imports made by M/s. Digitech Systems, M/s. S.S. Enterprises, M/s. Indicon Copier Services, it is stated that the subject goods are required to be modified/reconditioned for further use. He also stated that the estimated margin of profit varies between 20-25%, that the price of the second-hand goods varies depending upon the market conditions, demand, availability of spares, etc. All these are conditional factors to be kept in view while fixing quantum of fine and penalty and would justify reduction as done by the lower appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the Hon ble High Court of Madras and the decisions of the Tribunal in Maa Tara Enterprises and Others - Final Order Nos. 781 to 792/09, dated 11-6-2009 [2009 (248) E.L.T. 730 (Tri.)] reducing the fine and penalty in the case of imported second-hand photocopiers to 10% and 5%, the decision of the Tribunal in the case of M/s. Bhavani Enterprises and Others - Final Order Nos. 1253 to 1273/09, dated 21-10-2009 [2010 (262) E.L.T. 536 (Tri.)], Final Order Nos. 473-478/07, dated 19-4-2007 [2007 (216) E.L.T. 144 (Tri.)] in the case of imported and old/used photocopiers by M/s. Omex International and Others and Tribunal s decisions in Balaji Office Equipment v. Commissioner of Customs, Chennai [2007 (216) E.L.T. 611 (Tri.-Chennai)], Commissioner of Customs, Chennai v. Omex International [2007 (216) E.L.T. 144 (Tri.-Chennai)], Commissioner of Customs (Import), Nhava Sheva v. Delhi Photocopiers [2010 (255) E.L.T. 147 (Tri.-Mumbai)]. 4. I note that in a recent decision in the case of M/s. Shivam International and M/s. Sree Maa Enterprises - Final Order Nos. 405 to 416/2011, dated 27-6-2011 [2012 (286) E.L.T. 545 (Tri.)], the Tribunal has held that Digital Multifunctional print and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olation of Para 2.17, which reads :- 2.17 Second-Hand Goods All second-hand goods, except second-hand capital goods, shall be restricted for imports and may be imported only in accordance with provisions of FTP, ITC (HS), HBP v1, Public Notice or an Authorisation issued in this regard. Import of second-hand capital goods, including refurbished/re-conditioned spares shall be allowed freely. However, second-hand personal computers/laptops photocopier machines, air-conditioners, diesel generating sets will only be allowed against a licence. It is seen from the above reproduced Para 2.17 that the FTP has restricted the import of photocopier machines against a licence. The said Para 2.17 has not placed any restriction on used digital multifunction print or copier machines with multifunction facilities i.e. capable of performing two or more functions like scan, print, copy or fax and e-mail having storage devices in standalone mode or capable of connecting to ADPS or network would also be covered for importation against a licence. 4.4 It is also seen from the factual matrix, that the Chartered Engineer who were appointed, have also clearly indicated that the imported good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iode sensing array] converts the optical image into digitally coded electrical signals that are stored in memory. The print engine, which operates in the same manner as the printers described in Part (II)(A) of this Explanatory Note, then uses that data to produce the required number of copies. Original documents need only be scanned once to produce multiple copies, as the digital representation of the image is stored in memory. Part (D) below describes such apparatus when capable of connecting to an automatic data processing machine or to a network. (2) Photocopiers in which the optical image of the original document must be projected onto the photosensitive surface for each copy. The most common types are : (a) Electrostatic photocopying apparatus which operates either by reproducing the original image directly onto the copy (direct process) or by reproducing the original image via an intermediate onto the copy (indirect process). In the direct process the optical image is projected onto a substrate (usually of paper) coated with, for example, zinc oxide or anthracene, charged with static electricity. After the latent image has been developed by means o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and separate head for combination of printers, copying machines or facsimile machines in the HSN explanatory notes. In view of this, it is very clear that photocopier machines are understood as copying machines, while the imported goods fall separately under the category of combinations of printers, copying machines of facsimile machines. It is not in dispute in this case that the imported goods are combination of printers, copying machines and/or facsimile machines. Hence, the digital multifunction print copier machines cannot be termed as photocopiers to attract the bar of Para 2.17 of the FTP. 4.6 We find that the ratio of judgment of the Hon ble Supreme Court in the case of Xerox India Ltd. [2010 (260) E.L.T. 161 (S.C.)] (supra) would apply in this case inasmuch as that Hon ble Supreme Court has laid down as under :- 13. It is not in dispute that the Multi-Functional Machines in question, Xerox Regal 5799 has about 85% of the its total parts and components along with manufacturing cost allocated to printing, as does 74% of the Xerox XD155df model. This clearly shows that the printing function emerges as the principal function and gives the Multi-Functional Mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against confiscation and penalty, no justification exists for enhancement in the quantum of fine in lieu of confiscation and penalty. Further, in all the cases relied upon by the importers, fine to the extent of 15% and penalty to the extent of 5% of the value of the goods has been confirmed. The case law relied upon by the learned DR is distinguishable - the judgment of the Hon ble Bombay High Court in Commissioner of Customs, Mumbai v. Vaibhav Exports [2009 (244) E.L.T. 527 (Bom.)] deals with diamonds and it is a case where the importers produced forged licences and fraud and forgery vitiates everything. The Sophisticated Marbles Granite Industries v. Union of India [2004 (166) E.L.T. 318 (Bom.)] decision is also not applicable for the reason that the Hon ble Bombay High Court did not exercise discretionary jurisdiction vested in it and has not laid down any law, and further, the goods are different. The Tribunal s order in the case of Commissioner of Customs, Chennai v. Sagar Enterprises [2011 (264) E.L.T. 101 (Tri.-Chennai)] does not take into account the orders passed by the Hon ble High Court of Chennai, Sai Copiers case and Hon ble Kerala High Court decision in Office Devi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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