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M/s. Sai Shakti Enterprises Versus The Commissioner of Customs (Import) , Nhava Sheva

2016 (12) TMI 1158 - CESTAT, KOLKATA

Valuation - enhancement of value - Mis-declaration of quantity of goods - import of 46 units of old and used cannon photocopier machines - Held that: - As regard the enhancement of value done by the adjudicating authority, we find that sole basis for enhancement of value is based on the value suggested by DRI which relates to some other investigation. It is also observed that the Adjudicating authority accepted the price suggested by the DRI but did not bother to call for the basic evidence from .....

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is arbitrary and without any basis hence the same is not sustainable. - As regard the issue of mis-declaration of the quantity of the goods, we find that though in some of the model, quantity declared and the actual quantity are different but total quantity of the photocopier imported and declared by the importer are matching i.e. 46 number of photocopiers. We also find that in the discrepancy of the quantity in one model, it was observed that value declared in both the case is same therefo .....

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George, Advocate for the Appellants Shri. Kamal Puggal, Asstt. Commissioner(A.R.) for the Respondent Per : Ramesh Nair The appellant imported 46 units of old and used cannon photocopier machines valued at ₹ 6,84,093/- under Bill of Entry No. 892524 dated 24-9-2003. On intelligence SIIB officers intercepted Bill of entries which was assessed on first check basis. The goods were thereafter examined in the presence of AC/Docks of SSIB officers. The examination report revealed mis-declaration .....

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per the provision of policy. On this allegation, matter was adjudicated by the adjudicating authority wherein value was enhanced from ₹ 7,84,093/- to ₹ 11,63,828/- differential duty was asked to recover. On the charge of mis-declaration, the goods were held confiscated with an option of redemption on payment of fine of ₹ 3,75,000/- and also imposed penalty of ₹ 50,000/- under Section 112(a). Being aggrieved by the Adjudication order dated 16-11-2003, appellant filed appe .....

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ded by the department, consequently old and used machines cannot be compared with the other old and used machines for the reason that condition, use etc varies from one old machine to other old machine. Therefore valuation adopted by the department on the basis of some other used machine as suggested by DRI which is without any basis is not correct. As regard the charge of mis-declaration, he submits that total number of machines are tallying, minor discrepancy is that in one particular model of .....

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stoms, New Delhi[2015(328) ELT 579(Tri. Del)]. The lower authorities have contended that the photocopier being second hand goods required licence under the import and export policy. In this regard, he submits that second hand photocopier is capital goods and second hand capital goods is freely importable in terms of para 2.33 of the policy. Therefore there was no need of any licence. In this support he placed reliance on the Hon ble Supreme Court judgment in case of Atul Commodities Ltd Vs. Comm .....

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It is also observed that the Adjudicating authority accepted the price suggested by the DRI but did not bother to call for the basic evidence from where the DRI has obtained the price. Therefore price suggested by the DRI should not have been applied for enhancement of the impugned goods. Moreover goods imported is a second hand photocopier. Every second hand goods varies from each other depending upon the duration of use, manner of use and condition of the machine therefore price of one second .....

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tching i.e. 46 number of photocopiers. We also find that in the discrepancy of the quantity in one model, it was observed that value declared in both the case is same therefore it cannot be said that appellant has intentionally mis-declared the quantity of goods. The lower authorities also confirmed the charge that the photocopier is governed by para 2.17 of foreign trade policy, accordingly to which the import is restricted and therefore it requires licence for import. In this regard, we have g .....

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