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TMI Blog2015 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... rrant licence for import – Respectfully following earlier decision of Tribunal, court hold that no licence is required for import of second hand photocopiers prior to 19-10-2005 – Accordingly, imposing fine and penalty set aside and otherwise impugned orders upheld – Decided in favour of Assesse. - C/47/2006 & C/39/2007-DB - Final Order Nos. 40853-40854/2014 - Dated:- 4-9-2014 - Shri P.K. Das, Member (J) and R. Periasami, Member (T) Shri N. Viswanathan, Advocate, for the Appellant. Shri P. Arul, Superintendent (AR), for the Respondent. ORDER By Final Order No. 1938, 1939/2009, dated 15-12-2009, both the appeals were dismissed for non-prosecution. Appellant filed applications for restoration of the appeals dismissed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs authorities and also confiscated the goods in terms of Section 111(d) of the Customs Act, 1962 read with Section 3(3) of Foreign Trade (Development Regulation) Act for import of goods without specific licence. The Tribunal set aside the impugned orders in respect of licensing part and held as under :- In all the above cases, the common issue involved is the free importability of old and used photocopiers imported by the appellants herein (although the value declared by the importers has been rejected and value enhanced by the Customs authorities, that is not the subject matter of challenge in any of these appeals). The goods have been confiscated in terms of Section 111(d) of the Customs Act, 1962 read with Section 3(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. This resulted in confusion. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-hand capital goods 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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