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2016 (6) TMI 908 - CESTAT HYDERABAD

2016 (6) TMI 908 - CESTAT HYDERABAD - 2016 (336) E.L.T. 532 (Tri. - Hyd.) - Restriction on Import of second hand goods - import of second hand video cameras - confiscation - Foreign Trade Policy - FTP para 2.17 that it deals generally with second hand goods. Para 2.17 has two parts viz. second hand capital goods group and all other second hand goods. In the free category, the second sub-clause deals with all other second hand capital goods - According to the appellant, the imported goods would f .....

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quipment 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 the definition of capital goods say that it inclu .....

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of appellant. - Appeal No. C/25851/2013 - Final Order No. A/30150/2016 - Dated:- 19-2-2016 - MS. SULEKHA BEEVI, C.S., MEMBER(JUDICIAL) Shri P. Dwarakanath, Consultant for the appellant. Shri R. Sekhar, Authorised representative for the respondent. ORDER PER: SULEKHA BEEVI, C.S. The appellants had imported two cameras labeled as Red-one 7529 Mysterium (year of manufacture 2008) and Red-one 5596 (Mfr. Year 2007) vide Bill of Entry No.76282811 dated 16/08/2012. As the original invoice from the man .....

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aken 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 S .....

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t part deals with import policy and conditions of import of second hand capital goods. The second part deals with import policy and conditions of import of all other second hand goods. Para 2.17 of the FTP draws a dichotomy between the second hand goods and second hand capital goods. Second hand capital goods, again have two categories viz. restricted category and free category. In the free category, the import of all second hand capital goods other than refurbished/reconditioned spares of capit .....

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d AR Shri R. Sekhar submitted that the goods imported viz. video cameras would not fall under the category of second hand capital goods. These goods would fall under the category 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 .....

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econd Hand goods, the Import Policy Regime is given as under:- Import policy Conditions, if any I. Second Hand Capital Goods Group (a) Restricted category (i) Personal computers / laptops (ii) Photocopier machines / Digital multifunction print & copying machines. (iii) Air conditioners (iv) Diesel generating sets Restricted Allowed to be imported only as per provisions of FTP, ITC(HS), HBP v1, Public Notice or an Authorisation issued for import of the specified second hand item. (b) Free cat .....

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own 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 equ .....

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ld fall within the definition of capital goods. Para 2.33 of the HBP Vol.I lays down that import of second hand capital goods including refurbished / reconditioned spares except those of personal computers / laptops shall be allowed freely. As per para 2.33 except for personal computers and laptops, there is no restriction for import of second hand capital goods. 7. The Hon ble High Court of Madras in the case of Commissioner of Customs, Tuticorin Vs. City Equipment and others [2013-TIOL-359-HC- .....

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ond hand refurbished/reconditioned capital goods for purposes of free import. Except for those specifically mentioned restricted category of second hand capital goods which are not allowed free import, all other second hand capital goods including other enumerated 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 .....

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tional printing and copying machines, air conditioners, diesel generating sets, like other goods falling under free category, are permitted to be imported freely. .. … …. ….. 8. The contention raised by the appellant that the goods are second hand capital goods is not accepted by the department. According to the department, the definition of services given in para 9.52 of FTP states that services include all tradable services covered under General Agreement on Trade and Serv .....

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