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TMI Blog2016 (6) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... l.I lays down that import of second hand capital goods including refurbished / reconditioned spares except those of personal computers / laptops shall be allowed freely. Held that:- The appellants vide their letter dt. 29/08/2012 has submitted to the original authority that the video cameras were imported for the purpose of renting them out to those companies which make movies, television serials and documentary. That the equipment imported by them is their basic infrastructure and machinery for revenue generation. The authorities below have reached the conclusion that the activities proposed to be carried out by the appellant with these goods (cameras) are not covered within the scope of the definition of services as mentioned in para 9.52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide their letter dt. 01/09/2012 waived the requirement of show-cause notice and the case was taken up for adjudication. Thereafter original authority vide its order dt. 10/09/2012 confiscated the two numbers of digital still image video cameras giving an option to the appellant to redeem the same on payment of fine of ₹ 1,10,000/-. A penalty of ₹ 50,000/- was also imposed under Section 112(a) of Customs Act, 1962. The appellants carried the issue in appeal and vide the order impugned herein, the Commissioner(Appeals) upheld the confiscation but reduced redemption fine to ₹ 1,00,000/- and the penalty was reduced to ₹ 35,000/-. The appellants have filed the present appeal challenging the confiscation. 2. On behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the category of other second hand goods as provided in para 2.17 of the FTP. That the import of second hand goods is restricted and therefore the goods were rightly confiscated by the authorities below. He submitted that the appellant has failed to establish that the goods imported would fall under the definition of capital goods as provided in para 9.12 of FTP. He argued that para 2.33 is not applicable in the case of appellants as the import is not of second hand capital goods but the goods imported are second hand goods. 4. I have considered the submissions made by both sides and perused the records. According to the appellant, the goods fall into the category of all other second hand capital goods which are freely importable as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placement, modernisation, technological upgradation or expansion. It also includes packaging machinery and equipment, refractories for initial lining, refrigeration equipment, power generating sets, machine tools, catalysts for initial charge, equipment and instruments for testing, research and development, quality and pollution control. Capital goods may be for use in manufacturing, mining, agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisciculture, poultry, sericulture and viticulture as well as for use in services sector. 6. According to the appellant, the imported goods would fall within the definition of capital goods. Para 2.33 of the HBP Vol.I lays down that import of second hand capital goods including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reading sub clause (a) to Clause 2.33, if there is a restriction to be read on free import, it is only with reference to personal computers/laptops from among the restricted category of second hand capital goods group, which means, other restricted category under second hand capital goods group, specified in Para 2.17, namely, photocopier machine/digital multifunctional printing and copying machines, air conditioners, diesel generating sets, like other goods falling under free category, are permitted to be imported freely. .. … …. ….. 8. The contention raised by the appellant that the goods are second hand capital goods is not accepted by the department. According to the department, the definition of services given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal still image video cameras transmission apparatus for radio broadcasting or television (used equipment)". The authorities below have assumed without any basis that the activities proposed to be carried out using the imported goods cannot earn any foreign exchange. The learned consultant for appellant submitted that the appellant could sell the goods also and in that case would fall into the category of capital goods. The Honble High Court of Madras, in the case of City Office Equipment (supra), held that the second hand photocopiers imported for sale was freely importable being second hand capital goods. Following the view laid in the said case, I hold that the goods fall into the category of second hand capital goods. 10. From the for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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