9911796707
TMI Blog2007 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he held that the old and used Hard Disk Drives, Mother Boards, Network Cards, Connection Cables, Key Boards etc. can be considered as capital goods. He gave a finding that since the impugned goods are capital goods which are not more than 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" In the case of International Computers India Manufacturer v. Collector of Customs reported in 1990 (48) E.L.T. 150 (T), it has been held that - "the goods imported in contravention of ITC regulations, being prohibited goods attract penalty under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 learned JDR relied on the following case laws :- (a) Apex Steels (P) Ltd. v. CCE, Chandigarh [1995 (80) E.L.T. 368 (Tribunal)] (b) Central Machine Tool Institute v. CC, Bangalore [2000 (124) E.L.T. 231 (Tribunal)] (c) C.C. v. Shaw Wallace & Co. Ltd. [1990 (50) E.L.T. 143 (Tribunal)] (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 considered the above submissions. Though Para 2.17 of the EXIM Policy 02-07 places restriction on the import of second-hand, capital goods, Para 2.33 of the Handbook of Procedures allows free importation of all second-hand capital goods which are not more than 10 years old. The definition of 'capital goods' as per Para 9.10 of the said EXIM Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judicial pronouncements relied upon by the notice also uphold the above view." Since the issue is capable of different interpretations, imposition of penalty on the appellants is not warranted. Even while holding that the clarificatory Policy Circular of the DGFT reproduced above will have retrospective effect, in the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
