TMI Blog2016 (6) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... mputers / laptops shall be allowed freely. Held that:- The appellants vide their letter dt. 29/08/2012 has submitted to the original authority that the video cameras were imported for the purpose of renting them out to those companies which make movies, television serials and documentary. That the equipment imported by them is their basic infrastructure and machinery for revenue generation. The authorities below have reached the conclusion that the activities proposed to be carried out by the appellant with these goods (cameras) are not covered within the scope of the definition of services as mentioned in para 9.52 of FTP. That therefore they would not fall into the category of capital goods. It is to be noted that the second para of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01/09/2012 waived the requirement of show-cause notice and the case was taken up for adjudication. Thereafter original authority vide its order dt. 10/09/2012 confiscated the two numbers of digital still image video cameras giving an option to the appellant to redeem the same on payment of fine of ₹ 1,10,000/-. A penalty of ₹ 50,000/- was also imposed under Section 112(a) of Customs Act, 1962. The appellants carried the issue in appeal and vide the order impugned herein, the Commissioner(Appeals) upheld the confiscation but reduced redemption fine to ₹ 1,00,000/- and the penalty was reduced to ₹ 35,000/-. The appellants have filed the present appeal challenging the confiscation. 2. On behalf of the appellant, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of other second hand goods as provided in para 2.17 of the FTP. That the import of second hand goods is restricted and therefore the goods were rightly confiscated by the authorities below. He submitted that the appellant has failed to establish that the goods imported would fall under the definition of capital goods as provided in para 9.12 of FTP. He argued that para 2.33 is not applicable in the case of appellants as the import is not of second hand capital goods but the goods imported are second hand goods. 4. I have considered the submissions made by both sides and perused the records. According to the appellant, the goods fall into the category of all other second hand capital goods which are freely importable as per para 2.17 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown against all other second hand capital goods that these are freely importable. The definition of capital goods is given in para 9.12 of the FTP which is as under:- 9.12. Capital Goods means any plant, machinery, equipment or accessories required for manufacture or production, either directly or indirectly, of goods or for rendering services, including those required for replacement, modernisation, technological upgradation or expansion. It also includes packaging machinery and equipment, refractories for initial lining, refrigeration equipment, power generating sets, machine tools, catalysts for initial charge, equipment and instruments for testing, research and development, quality and pollution control. Capital goods may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated restricted category of second hand capital goods are permitted free import. Thus, with no distinction maintained between other restricted category of second hand capital goods and second hand capital free goods, we do not find any good ground to read in Clause 2.33, a restriction on the free import of second hand digital multifunction print and copier machines. Thus reading sub clause (a) to Clause 2.33, if there is a restriction to be read on free import, it is only with reference to personal computers/laptops from among the restricted category of second hand capital goods group, which means, other restricted category under second hand capital goods group, specified in Para 2.17, namely, photocopier machine/digital multifunctional p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (cameras) are not covered within the scope of the definition of services as mentioned in para 9.52 of FTP. That therefore they would not fall into the category of capital goods. It is to be noted that the second para of the definition of capital goods say that it includes goods used for service sector. The description of goods as per Bill of Entry is digital still image video cameras transmission apparatus for radio broadcasting or television (used equipment) . The authorities below have assumed without any basis that the activities proposed to be carried out using the imported goods cannot earn any foreign exchange. The learned consultant for appellant submitted that the appellant could sell the goods also and in that case would fall int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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