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TMI Blog2016 (12) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have been applied for enhancement of the impugned goods. Moreover goods imported is a second hand photocopier. Every second hand goods varies from each other depending upon the duration of use, manner of use and condition of the machine therefore price of one second hand goods cannot be applied to other second hand goods without ascertaining the physical parameter of both the machine - enhancement of the value is arbitrary and without any basis hence the same is not sustainable. As regard the issue of mis-declaration of the quantity of the goods, we find that though in some of the model, quantity declared and the actual quantity are different but total quantity of the photocopier imported and declared by the importer are matching i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther contended that imported photocopiers are second hand and old, accordingly as per para 2.17 of the Export and Import Policy 2002-07 import of second hand goods require licence as per the provision of policy. On this allegation, matter was adjudicated by the adjudicating authority wherein value was enhanced from ₹ 7,84,093/- to ₹ 11,63,828/- differential duty was asked to recover. On the charge of mis-declaration, the goods were held confiscated with an option of redemption on payment of fine of ₹ 3,75,000/- and also imposed penalty of ₹ 50,000/- under Section 112(a). Being aggrieved by the Adjudication order dated 16-11-2003, appellant filed appeal before the Commissioner(Appeals) who conquering with the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities have contended that the photocopier being second hand goods required licence under the import and export policy. In this regard, he submits that second hand photocopier is capital goods and second hand capital goods is freely importable in terms of para 2.33 of the policy. Therefore there was no need of any licence. In this support he placed reliance on the Hon ble Supreme Court judgment in case of Atul Commodities Ltd Vs. Commissioner of Customs, Cochin[2009(235) ELT 385(S.C.)] 3. On the other hand, Shri. Kamal Puggal, Ld Asst. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both sides and perused the record. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the charge that the photocopier is governed by para 2.17 of foreign trade policy, accordingly to which the import is restricted and therefore it requires licence for import. In this regard, we have gone through the judgment of Hon ble Supreme Court in case of Atual commodity Ltd(supra) wherein it was accepted that the restriction of import of second hand copier is not applicable for the reason that photocopier is capital goods as held by the Tribunal and accordingly second hand capital goods are freely importable. In this regard relevant para of 2.33 of foreign trade policy is reproduced below: 2.33 Import of Second Hand Capital Goods Import of second hand capital goods including refurbished/reconditioned spares, shall be al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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