TMI Blog2001 (5) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... imported a consignment of components of photocopier machine from England; that they filed a Bill of Entry on 15-4-1999 for clearance of 123 items of components in different quantities declaring them as old and used re-conditioned copier components classifiable under sub-heading 9000.90 of the Customs Tariff Act (CTA); that the value declared by them was Rs. 2,17,638.34 p, based on the invoice; that the Commissioner of Customs, under the impugned Order, held that they had imported the complete photocopiers classifiable under sub-heading 9009.21 of CTA; no significant parts were missing from the consignment of unassembled or disassembled photocopiers; import of old and used photocopier was allowed only under a specific licence which they did not possess and the correct value of the goods was Rs. 20,37,757.80 paise; that the Commissioner, therefore, confiscated the goods with an option to redeem the same on payment of fine of Rs. 1 lakh and imposed penalty of Rs. 50,000/-. 3. The ld. Advocate, further, submitted that they have not imported complete photocopiers and as such they have not mis-declared any fact in the Bill of Entry filed by them; that the component parts imported by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the validity of an import. Reliance has been placed on the decision in the case of Wipro Ltd. v. Commissioner of Customs, Chennai - 1999 (107) E.L.T. 398 (Tribunal) = 1999 (80) ECR 861, wherein it was held that Rule 2(a) is not applicable to ITC policy or exemption notification. He also said that following judgments of the Supreme Court and the Calcutta High Court lay down that unless specifically provided in the Import Policy in respect of any particular machines putting an embargo on the number of percentage of components that can be legally imported, there can be no restrictions on their import irrespective of their quantity or number. (a) CCE v. Tarachand - 1983 (13) E.L.T. 1456 (S.C.) (b) H.C.L. Ltd. v. U.O.I. - 1992 (59) 507 (Cal.) (c) Dynamatic Hydraulics Ltd. v. Collector - 1992 (58) E.L.T. 553 (S.C.). 5. The ld. Counsel mentioned that the goods imported by them are covered by a Special Import Licence which explicitly permits the import of old, used and re-conditioned components of photocopier machine; that the customs authorities have no power to challenge this explicit permission and hold that since these components parts can, by applying Rule 2(a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal held that only component or photocopier machines had been imported as Populated Circuit Board was not imported without which a machines could not perform any function. The ld. Advocate highlighted that in that case 90% components of photocopier machines were imported. In this regard reliance was also placed on the decision in the case of HCL v. U.O.I. - 1992 (59) E.L.T. 507 (Cal.) (in view of absence of selenium drum), in which it was held that whole photocopier machine was not imported; in the case of B.E. Automation Products v. C.C., Amritsar, 2000 (122) E.L.T. 908 (T) and in the case of Bhagwan Electric Copiers v. C.C., New Delhi, 1999 (106) E.L.T. 66 (T). 7. Shri B.B. Gujral, ld. Advocate, further mentioned that the value declared by them is a transaction value within the meaning of Rule 4 of the Customs Valuation Rules which, in absence of the value of contemporaneously imported comparable goods, has necessarily to be accepted as the genuine assessable value, unless there is any evidence such as any extra foreign exchange remittance, casting doubt about the genuineness of transaction value; that there is no such allegation in the show cause notice; that M/s. Ikon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 8. Countering the arguments, Shri Prahbat Kumar, ld. SDR, submitted that on examination of the goods it was noted that the goods were not component of the old photocopier machines though some component parts were found missing in the machines; that out of 50 main frame which were complete photocopier 46 were Canon make, 2 for Agfa make and two were Zerox make; that apart from main frames several other components were also found which were detached parts of photocopier which cannot be allocated to any specific model in absence of catalogue and literature; that Commissioner had given specific findings that the parts of the photocopier which were claimed to be missing were otherwise contained in the impugned consignment and after comparing the two lists, given in the show cause notice, of the goods, the Commissioner came to the conclusion that loose components found in the consignment were essentially those which were claimed to be missing parts by the importer; that admittedly goods imported were used ones and no sensible person would leave certain parts of the photocopier abroad; that as found by the adjudicating authority the importer has chosen an easy way to clear the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines only 2 machines were of Agfa make and two Zerox make and applying the best Judgment assessment under Rule 8, the valuation can be done on the basis of the price of Canon make machines; that the certificate given by the Chartered Engineers was only for technical purposes and not for valuation purposes; that the Chartered Engineer has only mentioned that these are fair prices without giving any basis or comparing them with the existing prices. Reliance was placed by him on the decision in the case of Sharp Business Machines Pvt. Ltd v. Collector of Customs - 1990 (49) E.L.T. 640 (S.C.). In reply the ld. Advocate for the Appellant mentioned that the value has been determined after taking into consideration current prices and given 70% or 40% discount arbitrarily, that in the case of Debabrata Ghosh v. Assistant Collector of Customs, 1993 (68) E.L.T. 551 (Cal.), the Calcutta High Court did not agree with the determination of price of a second-hand car on the basis of price of a new car and allowing depreciation thereon at a lower rate than the rate of 20% per annum adopted for income tax purposes. The ld. Advocate also submitted that all the reports were not made available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or finished goods. Similarly in the case of H.C.L. Ltd. Selenium Drum was not imported. If the goods imported by the Appellants are held to be photocopier machines, for the purpose of import regulation these cannot be treated as components parts. The ld. SDR, in this connection, has relied upon the decision in the case of Greaves Cotton. In the said case the Customs Authorities assessed the diamonds for ITC purposes as gem quality diamonds and for the purpose of Customs duty was assessed of the very same diamond as industrial diamonds. Bombay High Court allowed the writ petition observing as under : It is difficult to see how the custom authorities can blow hot and cold at the same time. Either the diamonds imported by the petitioner were gem quality or they were Industrial Diamonds. The Customs Authorities had to make up its mind. Apparently the reason for this contradictionry stand taken by the Customs Authority seems to flow from the fact that the duty on Industrial Diamond is 40% ad valorem where as the duty on gem quality diamond is a mere 21/2% ad valorem . Accordingly if the impugned goods are treated to be photocopier machines, the import of which is restricted and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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