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TMI Blog2017 (12) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... t Revenue. - C.M.A. Nos. 1298 and 1299 of 2007 - - - Dated:- 10-11-2017 - S. Manikumar And R. Suresh Kumar, JJ. For the Appellant : Mr. T. Pramod Kumar Chopda For the Respondent : Ms. P. Srija, for Jaikumar JUDGMENT ( Delivered by S. Manikumar, J. ) Final Order dated 28.09.2005 made in Final Order Nos.1335 and 1336/2015 on the file of CESTAT, South Zone, Chennai, is extracted hereunder: These applications of the Revenue (appellant) seek stay of operation of the impugned orders. As we are inclined to dispose of the appeals finally at this stage, we reject the applications and proceed to deal with the appeals. 2. After examining the records and hearing both sides, we find that the short question arising for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) and the Appellate Tribunal are correct in relying upon the decision in Atul Commodities (P) Ltd., vs. Commissioner 2005 (184) ELT Page 135 (Tri-LB) which has not reached finality? (iii) Whether the Commissioner (Appeals) and the Appellate Tribunal are correct in not following the clarification issued by the DGFT who is the competent Authority under the FTP governing the above imports and further in the context that as per para 2.3 of FTP, if any doubts arises in respect of the interpretation of policy, procedure etc. and the said doubt shall be referred to DGFT, whose decision shall be final and binding? 3. Opposing the prayer sought for, learned counsel for the respondent relied on the decision of the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1992 Act. On the other hand, the three administrative/policy circular Nos. 16/03, 19/03 and 20/05 only refer to clarifications issued by DGFT pursuant to representations received by him from the Trade. These circulars are clarificatory and not amendatory in nature. Therefore, under the scheme of the Statute, one finds a clear demarcation between an amendatory provision and a clarificatory provision. Section 5 of the 1992 Act contemplates amendment to the FTP. It empowers only the Central Government to amend the Policy. This power is not given to the DGFT. It is not open to DGFT vide circulars to change categorization of items from the category of free to the category of restricted imports. This aspect is important for two reasons. First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular was in the context of FTP 2002-07. However, in the Handbook of Procedures relating to FTP (2002-07) it was provided that import of second-hand capital goods, not more than 10 years old, would be allowed freely (see para 2.33 of the Handbook). In other words, old and used goods of not more than 10 years was treated as second-hand capital goods . This led to confusion. Therefore, representations came to be made to DGFT seeking clarifications as to whether second-hand PCs/Laptops stood covered under the definition of second-hand capital goods, provided they were not more than 10 years old. It is these representations which came to be answered vide Policy circular No. 16 dated 29.9.2003 in the manner indicated above. Accordingly, by P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20/05 requires to be noted. As stated above, under FTP (2002-07) import of second-hand goods could be made only against a licence. They came in the restricted category. However, in the Handbook (2002-07) it was inter alia provided that old and used capital goods which were not more than 10 years old could be imported freely. Those goods, therefore, were treated as new goods. This resulted in confusion. Therefore, DGFT stepped in to clarify that second-hand photocopying machines, irrespective of the period of use, shall fall in the restricted category (see Policy circular No. 19/03). Para 1 of Policy circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, in this case, we are concerned with imports under general category and not under EPCG. We are in agreement with the view expressed by the Larger Bench of the Tribunal that photocopying machines are capital goods as defined under para 9.12. The Tribunal has held that the use of these machines for rendering services makes them capital goods. In fact, this finding on the user is not challenged by the Department. Therefore, import of old and used photocopying machines stands covered by the concept of second- hand capital goods in para 2.17 (particularly in the light of the last statement in the said para, which we have underlined hereinabove). 21. One more aspect needs to be mentioned. Para 2.33 expressly states that import of old ..... X X X X Extracts X X X X X X X X Extracts X X X X
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