9911796707
TMI Blog2013 (6) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... While the Respondent claims that the goods imported are different from Photocopier Machine and hence are freely importable without licence, the Department was of the view that the goods imported are second hand Photocopies Machines and since at the time of import, second hand Photocopies Machines were restricted for import and could be imported only against import licence and since no import licence has been produced, the import is in contravention of the Foreign Trade Policy 2009-14 and hence the goods are liable for confiscation under section 111(d) of the Customs Act, 1962. According to the Department the cleared value of the second hand machines was also on lower side and that the same is Rs. 34,92,576/- as against the declared value o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period when this import had been made, the import of second hand Photocopier Machines was restricted and could be made only against the import licence, that the goods imported old and used Digital Multifunction Printing and Copying Machines are nothing but old and used photocopier machines and hence the same were restricted items, that in this regard he relies upon the judgment of the Tribunal in the case of Commissioner of Customs, Chennai Vs. Jay Dev Industries reported in 2012 (279) ELT-375 and also in the case of Unitech Enterprises Vs. Commissioner of Customs reported in 2012 (279) ELT-236, wherein it was held that Multifunction Printing and Copying Machine is essentially a Photocopier Machine and hence the import of old and used digi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the Minutes of the Meeting of Technical Review Committee held in the Ministry of Environment and Forests on 16.11.2011, which have been obtained by the Respondent under Right to Information Act, it is clear that the Government also recognizes the fact that there are separate ITC (HS) codes for Digital Multifunction Printing and Copying Machine and Photocopier Machine and accordingly a decision was taken to include the import of second hand Multifunction Printing and Copying Machines also in the restricted list, that since the old and used Multifunction Printing and Copying Machines were included in the restricted category by specific mention in para 2.17 w.e.f. 05.06.2012 during the period prior to 05.06.2012, the import of second ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 05.06.2012. The point of dispute is as to whether during period prior to 05.06.2012, which is the period of dispute in this case, old and used Digital Multifunction Printing and Copying Machines could be imported without licence or not. 6.1 We find that from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no infirmity in the impugned order setting aside the confiscation of the goods under section 111(d) of the Customs Act. 7. As regards the value of the goods, the declared value is Rs. 31,83,127/-, while accordingly to the Department, the correct value of the goods based on the Chartered Engineer's Certificate would be Rs. 34,92,576/-. Difference between declared value and the value of the goods according to the Department is very small and as such no evidence has been produced by the Department that the declared transaction value is incorrect and or that the Respondent had made additional payment to the supplier over and above declared value. In view of these circumstances we are of the view that the allegation of mis declaration of v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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