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TMI Blog2015 (2) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... so covered the “Digital Multifunction Print and copying machines”, there would have been no necessity for the DGFT to specifically include the second-hand multifunction machines in Para 2.17 of the EXIM Policy. Appeal rejected - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... copying Machine prior to 6-6-2012. Accordingly the Tribunal in the above referred case of CCE, Delhi v. M/s. Best Mega International, has taken note of the said two decisions of the Hon'ble High Court as also Minutes of the Meeting of Technical Review Committee of Ministry of Environment and Forests held on 16-11-2011 and has held as under :- "The goods imported are old and used Digital Multifunction Printing and Copying Machines covered by sub-heading 84433100. In terms of the Chartered Engineer Certificate, the remnant life of the machines is more than 5 years and the same are not e-waste fit to be discarded. During the period of dispute, para 2.17 of the Foreign Trade Policy mentions the restricted category of second hand capital goods and the same mentioned only photocopier machines as one of the items which could not be Imported in old and used conditions without an import licence. The term Digital Multifunction Printing and Copying Machines was added in para 2.17 of the Foreign Trade Policy only w.e.f. 5-6-2012. The point of dispute is as to whether during period prior to 5-6-2012, which is the period of dispute in this case, old and used Digital Multifunction Printing and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Tribunal in the case of CCE, Delhi v. Best Mega International reported in 2013 (293) E.L.T. 243 (Tri.-Del.). The head note of the reported decision reads as under : "Goods imported without import licence - Import of old and used 'Digital Multifunction Printing and Copying Machines' covered by sub-heading 8443 31 00, different from restricted item 'photocopy machines' and allowed import without license during relevant period - Impugned goods added in restricted category after period of import under Para 2.17 of Foreign Trade Policy with effect from 5-6-2012 on recommendation of Technical Review Committee of Ministry of Environment, treating them as different from photocopying machines - Chartered Engineer's Certificate certifying impugned goods not e-waste requiring licence for import." 7. The reported decision does not show date of import when law applicable on the date of import is decisive to reach to conclusion whether the old and used photocopier is restricted goods. Therefore, I do not agree with the conclusion drawn by the ld. Judicial Member in this batch of appeals of Revenue when the date of import in each case was not dealt specifically nor the law applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of used Digital Multifunction print and Copier Machines was not barred by Para 2.17 of Foreign Trade Policy. However, the Tribunal held that the above decision was rendered by incorrect application of the decisions of the Supreme Court in Xerox India case [2010-TIOL-97-SC-CUS = 2010 (260) E.L.T. 161 (S.C.)]. The Tribunal differed with the ratio of Shivam International judgment on the following grounds :- (i) Bangalore Bench in the case of Shivam International had wrongly placed reliance on the Supreme Court's decision in the case of Xerox India. In the cited case, the Supreme Court has decided the issue of classification of multifunctional machines for the purposes of charging Customs duty. This related to a case of import made during March, September to November, 1999. This decision was relevant to the period during which the impugned goods in that case were imported. Subsequently, the Tariff nomenclatures has changed and in the present case the impugned goods were being classified under Heading 8443 31 00 for the Customs duty purposes. The ratio of the said decision was no longer relevant to decide the classification of the impugned goods when the new Heading 8443 31 00 comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elated to import of Canon Digital multifunction printing and copying machine claiming classification thereof by assessee under T.H. 8443.3990 while Revenue claimed classification of the same under TH 8443.3100. Para 4 of the order classifies the position as under : "Shri Priyadarshi Monish, ld. Counsel for the respondent pleaded that the goods imported are Digital Multifunction Printing and Copying Machines classifiable under sub-heading 8443.31 00 of the Tariff and the same are different from the electrostatic photocopying machines covered by sub-heading 8443.39 30, that it is the old and used electrostatic photocopying machines which were restricted." 11. As is apparent from above paragraph, goods imported were old and used digital multifunctional printing and copying machine and Tribunal was posed with the question of classification. But real issue involved as is apparent from the facts of that case is whether during the period prior to 5-6-2012 old and used machine could be imported without license. But Tribunal arrived at decision on mere classification without examining applicability of the law prevailing on relevant date of import. 12. It is noticeable that in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will only be allowed against a license issued in this behalf. This issues in public interest. (K.T. Chacko) Director General of Foreign Trade And Ex-Officio Additional Secretary to the Govt. of India 14. There is nothing to presume that every case is a case of import after 5-6-2012 as that was presumed in the Best Mega International case reported in 2013 (293) E.L.T. 243 (Tri.-Delhi) without reference to actual date of import. To clarify the situation in the present batch of appeals, the data depicted in the chart at the outset by me shows the date of importation in each case for decision on the basis of law applicable to such importation. 15. It is observed from the Chart in proceeding paras that all imports in present cases relate to period prior to 5-6-2012. Decision in each case depends on its own fact and context taking into consideration DGFT notification and S.C. judgment in Atul Commodities case 2009 (235) E.L.T. 385 (S.C.). 16. Import of goods to India is governed by Customs Act, 1962, in addition to any other law that may govern such import. Law of Customs tests the goods imported for permissibility of entry thereof into India according to the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II shows that entries at A1180 and B1110 are relevant for electrical and electronic assemblies. 3. In this regard, the administrative Ministry viz. Ministry of Environment and Forests has been consulted and they have confirmed that items at A1180 of the said Schedule III relating to waste electrical and electronic assemblies or scrap containing components such as accumulators and other batteries, etc. require Prior informed Consent. It is also confirmed that items at B1110 of the said Schedule III can be imported with permission from Ministry of Environment and Forests. This entry includes electrical and electronic assemblies (including printed circuit board electronic components and wires) destined for direct re-use and not for recycling or final disposal. The Ministry of Environment and Forests has also confirmed that imports of second hand computers would require the permission of that Ministry. 4. In view of the above, the Board desires that the field formations should carefully and strictly implement the provisions of Hazardous Waste (Management, Handling and Transboundary) Rules, 2008. In particular, it should be noted that all imported goods falling within the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nounced) 21. [Per : Rakesh Kumar, Member (T)]. - Heard both the sides on the point of difference. 22. The point of difference which has been referred for decision is as to whether second hand old and used digital multifunction print and copying machines (hereinafter referred to as "multifunction machines") could be imported prior to 5-6-2012 or whether the import of such second-hand machines required an import licence. 23. Shri Sanjay Jain, ld. DR, relying upon the Tribunal's judgment in the case of Unitech Enterprises v. Commissioner of Customs reported in 2012 (279) E.L.T. 236, pleaded that that even during the period prior to 5-6-2012, the second-hand capital goods, whose import was restricted covered "photocopier machines", that multifunction machines, as discussed in detail in the Tribunal's judgment in the case of Unitech Enterprises (supra), are photocopier machines and that in view of this, even during the period prior to 5-6-2012, the import of second-hand multifunction machines required an import licence. He, therefore, pleaded that it is the order recorded by the Hon'ble Member (T), which is the correct decision. 24. Shri Priyadarshi Manish, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-2012, the second-hand multifunction machines were freely importable and no import licence was required and that it is only w.e.f. 5-6-2012, that their import became restricted, that Hon'ble Madras High Court in the case of Shrasti Digital Solution v. Commissioner of Customs reported in 2013-TIOL-359-HC-MAD-Cus = 2013 (298) E.L.T. 197 (Mad.) relying upon its earlier judgment in case of CC v. City Office Equipment (judgment dated 14-3-2013 in W.A. No. 890/2012) [2014 (302) E.L.T. 212 (Mad.)] has held that even often the amendment of Para 2.17 of the EXIM Policy w.e.f. 5-6-2012 second-hand multifunction machines became restricted for import only after the amendment to Para 2.33 of the Handbook of Procedures, that though the Tribunal in the case of Unitech Enterprises v. CC reported in 2012 (279) E.L.T. 236 (T-Ch) has expressed a contrary view and has held that even during the period prior to 5-6-2012 import of second hand Digital Multifunction Print and Copier Machines required an import licence, it is settled law that judgment of a High Court is binding on the Tribunal and that in view of this, it is the order recorded by the Hon'ble Member (J), which is correct. 25. I have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the second-hand photocopier machines, the second-hand multifunction machines were also put in the restricted category. The point of dispute is as to whether the term 'photocopier machines' also covered the multifunction machines. Though a Division Bench of the Tribunal in the case of Unitech Enterprises (supra) has held in Para 13 of the judgment, that the word 'photocopier machines' also covers the Digital Multifunction Print and Copier Machines, this issue has also been considered by the Hon'ble Madras High Court in the case of Anand Impex v. Commissioner reported in 2012 (281) E.L.T. 178 (Mad.) and Sai Graphic Systems (supra) and in both these judgments, the Hon'ble High Court has held that the import of second-hand multifunction machines became restricted only w.e.f. 5-6-2012 and before 5-6-2012, these second-hand capital goods could be imported without any import licence. When on a particular issue, there is a judgment of particular High Court and there is no contrary judgment of any other High Court, that judgment of the High Court is binding on the Tribunal. 28. Moreover, it is seen that amendment to Para 2.17 of the EXIM Policy so as to specifically include th ..... 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