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TMI Blog2007 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... nd used Laptop computers/hard disk drives totally valued at Rs. 21,44,798/-. The Revenue proceeded against the Respondents by issue of show cause notice for contravention of provisions of Exim Policy relating to import of second-hand goods. In terms of Para 2.17 of the Exim Policy 2002-2007 all second-hand goods shall be restricted for imports and may be imported only in accordance with the, provisions of the said policy, requiring a licence. Moreover as per Para 2.33 of the Handbook of Procedures, import of second-hand capital goods which are not more than 10 years old shall be allowed freely. The Adjudicating Authority held that the Lap top computers squarely fall within the meaning of capital goods as defined in the Exim Policy. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importer did not procure the licence for import of goods concerned under Para 2.17, the order in allowing imports without Licence is not correct. (iv) Since the impugned goods are not available for confiscation and for imposing of redemption fine under Section 125 of the Customs Act, 1962, the order of the Commissioner needs to be reviewed only for the purpose of imposing of penalty under Section 112(b)(i) of the Customs Act, 1962. This view is also supported by the following. It has been held in the case of Macneill Magor Ltd., Calcutta v. Collector of Customs reported in 1987 (28) E.L.T. 318 (T) that - "confiscation under Section 111(m) on account of misdeclaration atract penalty under Section 112(a) irrespective of mens rea" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2004 (168) E.L.T. 170 (Tri. -LB.)] (b) U.O.I v. Ganesh Das Bhojraj [2000 (116) E.L.T. 431 (S.C.)] (c) H.M. Bags Manufacturer v. C.C.E. [1997 (94) E.L.T. 3 (S.C.)] (d) Joint Chief Collector of I. E., Madras v. Aminchand Mutha [1999 (110) E.L.T. 273 (S.C.)] (e) DSL Software India Ltd. v. CC, Bangalore [2005 (181) E.L.T. 250 (Tri- Bang.)] (f) C.C. v. Shaw Wallace Co. Ltd. [1990 (50) E.L.T. 143 (Tri.)] (g) Universal Steel Agencies v. C.C, Kandala [2001 (138) E.L.T. 360 (Tri. - Mumbai)] 5. The learned JDR countered the same and submitted that the Policy Circular and clarification of the Government have only reiterated the existing legal position and will definitely have retrospective effect. Further the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable order and the Policy Circular of DGFT should have only prospective effect and not retrospective effect. Both the sides has cited a large number of case laws to support their contentions. We find that in respect of the assessee's case the DGFT has specifically addressed a letter to them and informed that PCs/Laptops shall not be treated as capital goods. They can be treated only as second-hand goods in respect of the imports made by the Respondents. The Policy Circular dated 29-9-2003 is re-produced. However, the Commissioner adjudicated the case and was not having the benefit of the Policy Circular. The Commissioner has given his own reasoning in Para 16 of the Order. The same is reproduced herein below "16. I have carefully consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assified as 'capital goods' under the provisions of Para 9.10 of the EXIM Policy 2002- 2007. Merely because the importer is a trader, the benefit of EXIM Policy cannot be denied if the item is otherwise freely importable. In fact, in respect of capital goods, the actual user condition for import of second-hand capital goods up to 10 years old has been dispensed with, in the EXIM Policy Initiatives announced on the 31st March, 2003 by the Ministry of Commerce. This clearly shows that import second-hand capital goods, which are not more than 10 years old, can be imported by any person without satisfying the actual user condition and therefore, trader importers are also eligible for the benefit of free importation of such capital goods. The ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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