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TMI Blog2022 (9) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... as capital goods and hence the import of such goods was restricted in terms of Sr. II of para. 2.31 of the Foreign Trade Policy 2015 - 2020 and that in absence of import authorization having been produced, the said goods are liable to confiscation under Section 111(d) of the Customs Act 1962 and consequently he proceeded to impose redemption fine of Rs. 5,00,000 in lieu of confiscation under section 125 of the Customs Act, 1962 and a further penalty of Rs. 4,00,000/- under Section 112(a) of the Customs Act 1962. 2. Briefly, the facts of the case are that the appellant herein purchased a "Complete Used Stainless Steel Tube Manufacturing Plant" including parts, spares, accessories, tools & tackles and office related furniture/equipment, at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of capital goods. The said order has been upheld by Commissioner of Customs (Appeals) by Order dated 3.11.2021 against which the present appeal is preferred by the appellant. 3. Shri Rahul Gajera, Learned Counsel appearing for the appellant submitted that the impugned order is not tenable; that the authorities below erred in not appreciating that when the office furniture/equipment are part of the compete plant and its use in relation to the manufacturing activity is not disputed, it follows that the said goods qualify as "capital goods" in terms of para 2.31 Sr. I (c) and accordingly are freely importable. He submitted that the definition of "capital goods" is provided under para. 9.8 of the Foreign Trade Policy and the same is wide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in relation to the manufacturing of goods is not disputed, they are indeed required directly or indirectly in manufacturing of goods. 6. Upon perusal of the purchase agreement dated 14.10.2019 between the appellant and the seller namely SN Aussenhandel E.K. Germany "used office furniture/equipment" formed part of "Complete Used Stainless Steel Tube Manufacturing Plant". The scope of used tube manufacturing plant under the said agreement, in terms of para. V, included all equipment from its location and further the said office furniture/equipment is listed at sr. 17 of the chartered engineer's certificate dated 28.07.2020. In that view office related furniture/equipment indeed formed part of the said complete plant. Since the said goods f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de and thus use of such goods having indirect nexus with the manufacture or production of goods also qualify as capital goods. This view is supported by the following decisions of Tribunal: (i) Asia Power Projects Limited vs. Commissioner of Customs, Chennai - 2019 (370) ELT 477 (Tri. Chennai) (ii) GE India Technology Centre vs. Commissioner of Customs - 2009 (247) ELT 402 (Tri. Bangalore) (iii) Warburg Pincus India Pvt. Limited vs. Commr. of Cus. (Imports), Mumbai - 2017 (358) ELT 1250 (Tri. Mumbai) 8. The ratio of the above decision is that the office furniture, tools etc which are used in relation to the manufacturing plant/services answers "user test" and in view of the wide and inclusive definition of "capital goods" under the F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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