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TMI Blog2024 (2) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... lier. The said drawings are enclosed in the appeal paper book. These drawings show that the word SALZER has to be etched on the moulds. The photographs of the imported goods have been placed before us. On perusal of these photographs, it is seen that the item bears the etching of the word SALZER . The appellant has submitted that they do not have any other company outside India - the opinion of the Chartered Engineer that the moulds are used and not new does not seem to be factually proper. It requires to be mentioned that even though the etching of word SALZER is prominent in the photographs, the Chartered Engineer has not mentioned anything about this in the report. Further, the report says that it is not rapidly used. The appellant has stated that other than the trial runs, the moulds have not been used and are entirely new. The report given by the Chartered Engineer that the goods appear to be used is not supported by any scientific or technical basis. The expert opinion cannot be used as a conclusive proof and is only corroborative in nature - Though opinion of an expert does help Court to arrive at a satisfactory conclusion; but this not mean that an expert opinion has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re old and used and was sent to the Assessment Group on 15.02.2014. 2. Appellant vide letter dt. 02.02.2014, enclosed a clarification received from the foreign supplier which stated that moulds are not old and only trials have been conducted on these moulds. It was stated by the supplier that the moulds are new and meant for the importer (appellant). 3. In view of the above, the consignments were examined by a Chartered Engineer who in his report stated that the items are old and used. It was also stated in the report that the goods are two to three years old, but found to be not rapidly used and not reconditioned. 4. As per para 5.1 (e) of the Foreign Trade Policy second hand capital goods shall not be permitted to be imported under EPCG Scheme . 5. The appellant vide letter dt. 10.03.2014 requested for adjudication of the matter waiving the issuance of the show cause notice and personal hearing. Subsequently, the original authority passed the order dt. 02.04.2014 by which the benefit of Notification No.22/2013 dt. 18.4.2013 was denied and ordered for clearance of the goods on payment of appropriate duty. The value of the goods was enhanced to Rs.79,01,295/- and penalty of Rs.3,50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acture their product. 6.4. Paragraph 5.1(e) of the Foreign Trade Policy is as follows: (e) Second hand capital goods shall not be permitted to be imported under EPCG Scheme. From the above, it could be seen that what is not permitted is second hand capital goods. In the present case, there is nothing on record to show that moulds are second hand. Further the etching in the moulds clearly indicates the name SALZER and therefore, the moulds are not second hand. 6.5. The Chartered Engineer has not given copies of photo/video taken inside the moulds which would clearly indicate/show that the moulds are etched with the name SALZER. For reasons best known the above factual position has been conveniently ignored by the Chartered Engineer in his Certificate of Inspection. This is a crucial piece of evidence which is very much necessary to decide the issue. Further, it will also reveal the fact whether there is wear and tear of the etching. In this connection the appellant has furnished the drawing of the moulds sent along with their purchase order dated 15.6.2012 which would clearly indicate specifications and the etching of the name SALZER. Since the above etching has not been reported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in the present facts. Ld, Counsel prayed that the appeal may please be allowed. 9. The Ld. A.R Sri Anoop Singh appeared and argued for the Department. It is submitted that the appellant had accepted the misdeclaration of the imported goods and waived the SCN. Therefore, it is not legally correct for the appellant to take somersault and contest the assessment made by the original authority. If the appellant had contested the nature of the goods, a show cause notice would have been issued and the remaining procedures followed. As the appellant waived the show cause notice, the department could not proceed with further investigations. 9.1 It is submitted by Ld.A.R that the goods were examined on the request of the appellant and a Chartered Engineer s report was obtained. The said report confirms that the goods are used ones. The Commissioner (Appeals) in para-7 of the impugned order has discussed in detail with regard to the certificate issued by the Chartered Engineer. It has been clearly reported that the goods were found to be used and not new . As per para 5.1 (e) of the FTP, the import of second hand capital goods is not permitted under EPCG scheme and the appellant is not eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the moulds were imported only after delay of 1 years. The import has taken place only on 12.02.2014. It is thus argued by the counsel that due to the delay in import, the goods must have lost its new appearance. It is to be noted that in the purchase order the appellant has mentioned the supplier to comply with the specifications / requirements. So also, the purchase order shows the drawing number, description of the material (As per Annexure to Purchase Order No.00029). This proves that the appellant had submitted drawings of the items to their supplier. The said drawings are enclosed in the appeal paper book. These drawings show that the word SALZER has to be etched on the moulds. The photographs of the imported goods have been placed before us. On perusal of these photographs, it is seen that the item bears the etching of the word SALZER . The appellant has submitted that they do not have any other company outside India. It can be strongly inferred that a product which has the name SALZER etched on them is intended to be used by the said company only. The appellant is using these moulds for the manufacture of switches. From the drawings attached to the purchase order as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en enhanced. For eg. The value of of USD 4800 declared for the item Plastic Injection Mould (1 Module Wrap Around Plate Mould) has been enhanced by the department to USD 7500. We do not understand how the department was able to arrive at this enhanced value. The impugned order does not give how such enhanced value has been arrived at by the department. There are no satisfactory reasons given for doubting and rejecting the transaction value. Though the department has accepted the report of the Chartered Engineer in regard to the opinion that the imported items are used and second hand, surprisingly, the opinion given by him that the value declared by the importer is fair and reasonable, has been rejected. The reasons for such rejection is not available before us. 15. From the above discussion, we find that as per the records such as date and description in purchase order, drawings and the photographs, the contention of the appellant that the goods imported are new is probable and acceptable. The overseas supplier has issued a certificate stating that the goods are new. The said certificate though produced before the authorities, was not considered at all. We find that there are no g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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