TMI Blog2014 (5) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) is as to whether the Digital Multifunction Printing and copying Machines (Old and used), imported prior to 05.06.2012 are hit by Para 2.17 of the Foreign Trade Policy, which placed the same under the restricted category with effect from 05.06.2012. It is seen that prior to the said date, only photocopier were listed under the said Para 2.17 of the Foreign Trade Policy for the purposes of requirement of licence. 2. Commissioner (Appeals) has granted relief to the respondent by observing as under Para 5 of Commissioner (Appeals):- The issue of requirement of license with reference to Para 2.17 of Rules (supra) has been amply addressed to in the case of M/s Shivam International and M/s Sree Maa Enterprises v. C.C. Cochin by CESTAT , Banglore vide final order No. 4052416/2011 dated 27.06.2011, wherein it was held that the subject goods do not fall under the restriction imposed. This case laws, it is observed has since, attained finality. It is admitted that the imported goods are not merely photocopy machines but are having both printing, copying machines while relying upon the HSN explanatory goods to sub-heading 84.43. It is further an admitted fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . We find that from the Minutes of the Technical Review Committee of Ministry of Environment and Forests held on 16.11.2011 which have been obtained by the Respondent from the Ministry under Right of Information Act, it is clear that Government itself treated Digital Multifunction Printing and Photocopying Machines as different from Photocopying Machines and for this reason only, felt the need to mention the old and used Digital Multifunction Printing and Photocopying Machines in para 2.17 of the Foreign Trade Policy, as items restricted for import and accordingly w.e.f. 05.06.2012 para 2.17 of the Foreign Trade Policy was amended by adding old and used Digi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot e-waste requiring licence for import. 7. The reported decision does not show date of import when law applicable on the date of import is decisive to reach to conclusion whether the old and used photocopier is restricted goods. Therefore I do not agree with the conclusion drawn by the ld. judicial member in this batch of appeals of Revenue when the date of import in each case was not dealt specifically nor the law applicable to each case of import at the relevant point of time was discussed in each case. As date of each case of import was not dealt in the draft order, I propose to record my separate order in the following paragraphs depicting the date of importation, declared value, Redemption fine and penalty imposed in adjudication in each of the appeals as under: Sl. No. Bill of Entry No. and date Importer Assessee Appeal No. Declared Value Assessed value based on Charted Engineer Certificate RF (Rs. in lakhs) Penalty (Rs. in lakhs) 1. 5030196 dt.27.10.11 M/s Asian Copie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Policy. However, the Tribunal held that the above decision was rendered by incorrect application of the decisions of the Supreme Court in Xerox India case. The Tribunal differed with the ratio of Shivam International Judgement on the following grounds:- (i) Bangalore bench in the case of Shivam International had wrongly placed reliance on the Supreme Court's decision in the case of Xerox India. In the cited case, the Supreme Court has decided the issue of classification of multifunctional machines for the purposes of charging customs duty. This related to a case of import made during March, September to November, 1999. This decision was relevant to the period during which the impugned goods in that case were imported. Subsequently, the Tariff nomenclatures has changed and in the present case the impugned goods were being classified under Heading 84433100 for the Customs duty purposes. The ratio of the said decision was no longer relevant to decide the classification of the impugned goods when the new Heading 84433100 completely described the product and there was no question of choosing one entry over the other. (ii) Supreme Court in the case of Atul Commoditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der TH: 8443.3100. Para 4 of the order classifies the position as under: Shri Priyadarshi Monish, Ld. Counsel for the respondent pleaded that the goods imported are Digital Multifunction Printing and Copying Machines classifiable under sub-heading 8443.31 00 of the Tariff and the same are different from the electrostatic photocopying machines covered by sub-heading 8443.39 30, that it is the old and used electrostatic photocopying machines which were restricted. 11. As is apparent from above paragraph, goods imported were old and used digital multifunctional printing and copying machine and Tribunal was posed with the question of classification. But real issue involved as is apparent from the facts of that case is whether during the period prior to 5-06-2012 old and used machine could be imported without license. But Tribunal arrived at decision on mere classification without examining applicability of the law prevailing on relevant date of import. 12. It is noticeable that in M/s Unitech's case reported in 2012 (279) ELT 236 (Tri. Chennai) , Tribunal recorded in Para 11 that upon introduction of new heeding 8443.3100, there in complete description of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Govt. of India 14. There is nothing to presume that every case is a case of import after 5.6.2012 as that was presumed in the Best Mega International case reported in 2013 (293) ELT 243 Tri.-(Delhi) without reference to actual date of import. To clarify the situation in the present batch of appeals, the data depicted in the chart at the outset by me shows the date of importation in each case for decision on the basis of law applicable to such importation. 15. It is observed from the Chart in proceeding paras that all imports in present cases relate to period prior to 5.6.2012. Decision in each case depends on its own fact and context taking into consideration DGFT notification and S.C. Judgement in Atul Commodities case 2009 (235) E.L.T. 385 (S.C.). 16. Import of goods to India is governed by Customs Act, 1962, in addition to any other law that may govern such import. Law of Customs tests the goods imported for permissibility of entry thereof into India according to the provisions therein. Import may be subject to restrictions, prohibitions or open. Apart from this, proper classification of import and valuation thereof for the levy is one of the requirements of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have confirmed that items at A1180 of the said Schedule III relating to waste electrical and electronic assemblies or scrap containing components such as accumulators and other batteries etc. require Prior informed Consent. It is also confirmed that items at B1110 of the said Schedule III can be imported with permission from Ministry of Environment and Forests. This entry includes electrical and electronic assemblies (including printed circuit board electronic components and wires) destined for direct re-use and not for recycling or final disposal. The Ministry of Environment and Forests has also confirmed that imports of second hand computers would require the permission of that Ministry. 4. In view of the above, the Board desires that the field formations should carefully and strictly implement the provisions of Hazardous Waste (Management, Handling and Transboundary) Rules, 2008. In particular, it should be noted that all imported goods falling within the purview of entry B 1110 of Part B of Schedule III of the said Rules, indicating second hand computers, would require the permission of the Ministry of Environment and Forests for import into India. It merits mention tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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