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TMI Blog2015 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ake in their application for restoration of appeals. 2. After hearing both sides and on perusal of the applications, we find that there are sufficient reasons to recall the order dated 15-12-2009 passed ex-parte without going into merit. All these ROA applications are allowed and the appeals are restored in the original numbers. ROM application are disposed of. 3. Common issue is involved in these appeals and therefore, both are taken up together for disposal. 4. The appellant filed Bills of Entry in 2003 for clearance of used photocopier main frame assemblies and other parts such as document feeders, top glass, doors, control panels etc. The adjudicating authority had enhanced the declared value and also confiscated the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redeem them on payment of fine has been extended. Penalty has also been imposed upon the importers under Section 112 of the Customs Act, 1962. (2) We have heard both sides. The contention of the importers that the goods imported by them were freely importable and their import did not require to be covered by a licence is to be accepted, in the light of Apex Court's judgement dated 24-2-2009 in Civil Appeal No. 2999/2007 etc. in the case of M/s. Atul Commodity Pvt. Ltd. and Others v. Commissioner of Customs, Cochin, holding that import of old and used photocopiers is not restricted prior to 19-10-2005 (imports in all these appeals are prior to this date) and that Notification No. 31, dated 19-10-2005 restricts imports of such goods on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... photocopying machines are imported for service providers. Vide para 3, the Policy Circular No. 20/05 clarifies that second-hand photocopying machines are covered under the definition of "second-hand goods", therefore, their import shall be governed by the provisions of para 2.17 of the Policy and shall not be permitted to be imported under para 5.1 of the Policy. Reverting to para 2.17 of FTP (2004-09) read with para 2.33 of the Handbook (2004-09) one finds that import of second-hand capital goods is made "free". Para 2.17 of FTP (2004-09) is in two parts. The first part deals with the meaning of the words "second-hand goods". The second part states that import of second-hand capital goods shall be allowed freely. Para 3 of the Policy circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chines are expressly restricted only by Notification No. 31, dated 19-10-2005. This itself indicates that categorization/re-categorization cannot be done by policy circulars. Such exercise has to be undertaken by specific amendment to the Policy vide Section 5 of the 1992 Act. In this case, Notification No. 31, dated 19-10-2005 indicates that the Central Government has brought in photocopying machines into the category of second-hand goods vide amendatory Notification, therefore, import of photocopying machines stand restricted only on and after 19-10-2005. In fact, if the argument of the Department is to be accepted, then there was no need to issue Notification No. 31, dated 19-10-2005." 6. The learned Advocate submits that the enhan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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