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TMI Blog2016 (4) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 243 - CESTAT CHENNAI], no licence is required for import of second hand photocopiers prior to 19-10-2005. Therefore, the fine and penalty are set aside. - Decided partly in favour of appellant - C/172/2005 - Final Order No. 41794/2015 - Dated:- 12-11-2015 - R. Periasami, Member (T) And P. K. Choudhary, Member (J) For the Appellant : Mr. N. Viswanathan, Adv For the Respondent : Mr. B. Balamurugan, AC (AR) ORDER Per P. K. Choudhary The appellant filed this appeal against the Order of the adjudicating authority dated 20.10.2004. 2. The appellant M/s. A.I.R. Overseas, New Delhi, holders of Import Export Code No. 0599008067, imported a consignment of 308 nos. of old and used parts of main frame assemblies' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Advocate and perused the records. The issue relates to import of old used photo copying machines and enhancement of value and confiscation of the goods for contravention of license policy. The appellants imported these second hand photo copiers on 17.9.2004. As regards the contravention of policy, we find during the period under import, the import of old and new photo copier machines covered under the policy as second hand capital goods. The policy was specifically amended on 19.10.2005 where the second hand photo copiers were brought under restricted category. In this regard we find that the issue has already been settled by the Apex Court in the case of M/s. Atul Commodity Pvt. Ltd and others. Based on the Apex Court's decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and after 19-10-2005. The Apex Court has upheld the decision dated 11-5-2005 of the Larger Bench of the Tribunal in M/s. Atul Commodity Pvt. Ltd. and the Hon'ble High Court of Andhra Pradesh also took the same view in Central Excise Appeal No. 52/05 and the Apex Court set aside the judgment dated 7-4-2006 of the Hon'ble Kerala High Court (which was challenged before the Supreme Court) holding that import of secondhand photocopiers prior to 19-10-2005 also warranted a licence for import. The relevant extract from the Apex Court's judgment is reproduced herein below :- 20. Policy Circular No. 20/05 appears to be in continuation of Policy Circular Nos. 16/03 and 19/03. In this connection, para 1 of Policy Circular No. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy circular No. 20/05 states that import of second-hand goods shall be governed by the provisions of para 2.17 of the Policy. Para 2.17 has to be read in its entirety. That para draws a dichotomy between second-hand goods and second-hand capital goods . Para 2.33 of the Handbook (2004-09) places restriction only qua computers and not qua photocopying machines. In our view, therefore, one has to give weightage to the second part of para 2.17 which allows free import of second-hand capital goods. What is not permitted vide para 3 of the Policy Circular No. 20/05 is importation under EPCG. As stated above, in this case, we are concerned with imports under general category and not under EPCG. We are in agreement with the view expressed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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