TMI Blog2015 (2) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... ected - decided against Revenue. - C/56642, 56659-56661, 56664 & 56666/2013-Cus(DB) and C/2805/2012 - Final Order Nos. C/A/50657-50662/2015-CU(DB) and Interim Order Nos. 183-188/2014-CU(DB) - Dated:- 18-2-2015 - Ms. Archana Wadhwa, Member (J) and Shri Manmohan Singh, Member (T) Third Member on Reference : Shri Rakesh Kumar, Member (T) Majority Order per : Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) Shri P.K. Sharma, AR, for the Appellant. Shri Priyadarshi Manish, Advocate, for the Respondent. ORDER [Order per : Archana Wadhwa, Member (J)]. - The short issue involved in the present appeals of the Revenue against the order passed by Commissioner (Appeals) is as to whether the Digital Multifunction Printing and copying Machines (Old and used), imported prior to 5-6-2012 are hit by Para 2.17 of the Foreign Trade Policy, which placed the same under the restricted category with effect from 5-6-2012. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Accordingly the Tribunal in the above referred case of CCE, Delhi v. M/s. Best Mega International, has taken note of the said two decisions of the Hon ble High Court as also Minutes of the Meeting of Technical Review Committee of Ministry of Environment and Forests held on 16-11-2011 and has held as under :- The goods imported are old and used Digital Multifunction Printing and Copying Machines covered by sub-heading 84433100. In terms of the Chartered Engineer Certificate, the remnant life of the machines is more than 5 years and the same are not e-waste fit to be discarded. During the period of dispute, para 2.17 of the Foreign Trade Policy mentions the restricted category of second 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. 5-6-2012. The point of dispute is as to whether during period prior to 5-6-2012, which is the period of dispute in this case, old and used Digital Multifunction Printing and Copying Machines could be impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ega International reported in 2013 (293) E.L.T. 243 (Tri.-Del.). The head note of the reported decision reads as under : Goods imported without import licence - Import of old and used Digital Multifunction Printing and Copying Machines covered by sub-heading 8443 31 00, different from restricted item photocopy machines and allowed import without license during relevant period - Impugned goods added in restricted category after period of import under Para 2.17 of Foreign Trade Policy with effect from 5-6-2012 on recommendation of Technical Review Committee of Ministry of Environment, treating them as different from photocopying machines - Chartered Engineer s Certificate certifying impugned goods not 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,56,413/- ₹ 31,87,157/- ₹ 7,01,000/- ₹ 3,19,823/- 8. The draft order prepared by ld. Judicial Member has not taken the ground of appeal of Revenue for consideration. The summary of the grounds are as under : 1. Import of second hand, i.e., old nd used digital multifunction print and copying Machines is restricted under Para 2.17 of Foreign Trade Policy, 2009-2014. 2. In the case reported in 2012-TIOL-976-CESTAT-MAD = 2012 (279) E.L.T. 236 (Tri.-Chen.), the CESTAT Chennai has held as under :- The dispute relates to confiscation, imposition of fine and penalty on import of used photocopiers which require licence in terms of Para 2.17 of the FTP. 3. Before this Tribunal, the appellant relied on the ratio of Shivam International [2011-TIOL-851-CESTAT-BANG = 2012 (286) E.L.T. 545 (Tri.)] wherein the Tribunal had held that import of used Digital Multifunction print and Copier Machines was not barred by Para 2.17 of Foreign Trade 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 [201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective of its classification. (iv) These multifunction machines are known as photocopier machines found almost on every street in a city. These multifunction machines are on the Government of India s DGS D rate contract list of photocopier machines. 9. The grounds of appeal of revenue raises the issue whether multi-functional printing and copying machines are classifiable under 8443.2100 as claimed by Revenue or such goods classifiable under 8443.3990 as claimed by the respondent-assesses and import thereof required licence. Law relating to classification, object of Section 11 of Customs Act, 1962 and different notifications issued under different statute and clarification issued by C.B.E. C./DGFT have not been considered in the draft order but hold that the good in question were freely importable without licence, not being restricted goods. 10. The case of Best Mega International - 2013 (293) E.L.T. 243 in (Tri.-Delhi) related to import of Canon Digital multifunction printing and copying machine claiming classification thereof by assessee under T.H. 8443.3990 while Revenue claimed classification of the same under TH 8443.3100. Para 4 of the order classifies the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restricted goods. It does not stand to reason that DGFT Notification No. 31/2005, dated 19-10-2005 does not impose restriction on photocopier of different types. Notification No. 31/2005, dated 19-10-2005 is reproduced below for ready reference. Notification No. 31/2005, dated 19-10-2005 Amendments in Para 2.17 - Second Hand Goods of Foreign Trade Policy, 2004-09 S.O. (E) In exercise of powers conferred by Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (No. 22 of 1992) read with paragraph 1.3 of the Foreign Trade Policy, 2004-09 as amended from time to time, the Central Government hereby makes the following amendments : 1. The Paragraph of Para 2.17 will be amended to read as follows : Import of second hand capital goods, including refurbished/ re-conditioned spares shall be allowed freely. However, second hand personal computers/laptops, photocopier machines, air conditioners, diesel generating sets will only be allowed against a license issued in this behalf. This issues in public interest. (K.T. Chacko) Director General of Foreign Trade And Ex-Officio Additional Secretary to the Govt. of India 14. There is nothing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in Atul Commodities case 2009 (235) E.L.T. 385 (S.C.). That position remained unimpaired till stated otherwise by notification of 5-6-2012 under different statute. 18. The Hazardous Waste Rules are in addition to Customs law but not a substitute thereof. Therefor C.B.E. C. in its Circular No. 27/2011-Cus., dated 4-7-2011 classified as under : 2. As the field formations are aware, the import and export of hazardous wastes is regulated by the Hazardous Waste (Management, Handling and Transboundary) Rules, 2008. Chapter IV of these Rules deals with import and export of hazardous wastes and Rule 13 thereof states that import of such wastes shall be allowed only for recycling, or recovery or reuse and not for disposal. Further, Rule 14 thereof provides that import and export of hazardous wastes specified in Schedule III shall be regulated in accordance with the conditions specified therein. A perusal of the said Schedule III shows that entries at A1180 and B1110 are relevant for electrical and electronic assemblies. 3. In this regard, the administrative Ministry viz. Ministry of Environment and Forests has been consulted and they have confirmed that items at A1180 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, classification in all these appeals is to be made according to the spirit of Apex Court judgment in Atul s case (supra) and interpretation in Unitech case read with Tariff entries as well as Board s clarification. Consequently, revenue s contention that old and used multifunctional copying and printing machines are covered under broader classification and DGFT s notification and thus restricted, is upheld and Revenue succeeds in all the appeals. 20. In the result all the appeals of Revenue are allowed. Sd/- (Manmohan Singh) Member (Technical) DIFFERENCE OF OPINION Whether the Digital Multifunction printing and photocopying machines imported prior to 6-6-2012 do not require a license for importation of the same as held by Member (Judicial) or the same require a license for importation as held by Member (Technical)? Sd/- (Manmohan Singh) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) (Pronounced) 21 . [Per : Rakesh Kumar, Member (T)]. - Heard both the sides on the point of difference. 22. The point of difference which has been referred for decision is as to whether second hand old and used digital multifunction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pier Machines, that in view of this during the period prior to 5-6-2012, the old and used/second-hand multifunction machines could be freely imported and no import licence was required, that this issue was considered in detail by the Divisional Bench of the Tribunal in the case of Shivam International reported in 2012 (286) E.L.T. 545 (T-LB) wherein the Tribunal after considering Para 2.17 of the EXIM Policy, as it stood during the period prior to 5-6-2012 and also the HSN Explanatory Notes to Heading 84.43, held that multifunction machines are different and distinct from photocopying machines and since the import of second-hand multifunction machines was restricted w.e.f. 5-6-2012, during the period prior to 5-6-2012, import of these goods did not require any import licence, that the Hon ble Madras High Court in the case of Sai Graphic Systems v. CC, Chennai reported in 2013 (289) E.L.T. 423 (Mad.) has held that during the period prior to 5-6-2012, the second-hand multifunction machines were freely importable and no import licence was required and that it is only w.e.f. 5-6-2012, that their import became restricted, that Hon ble Madras High Court in the case of Shrasti Digital Sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) Free category (i) Refurbished/ reconditioned spares of capital goods Free Subject to conditions specified in para 2.33 of HBPv1. (ii) All other second-hand capital goods. Free II. All other Second-Hand Goods. Restricted. Para 2.17 of the EXIM Policy during period prior to 5-1-2012 was as under :- All second hand goods, except second hand capital goods shall be restricted for import, and may be imported only in accordance with the provisions of FTP, ITC (HS), HBPv1, Public Notice or an Authorisation issued in this regard. Import of second hand capital goods, including refurbished/re-conditioned spares shall be allowed freely. However, second hand personal computers/ laptops, photocopiers machines, air-conditioners, diesel generating sets will only be allowed against a licence . 27. Thus, it will be seen that while during the period prior to 5-6-2012, Para 2.17 mentioned among other items, the second-hand photocopier machines as the items which could be imported only against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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