TMI Blog2019 (1) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... ols for the purpose of para 9.12 of the policy and will then not become restricted for import in terms of para 2.17 of the FTP. Appeal allowed - decided in favor of appellant. - Appeal No. C/68/2012 - FINAL ORDER NO. 40016/2019 - Dated:- 4-1-2019 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Ms. P. Kanthivisalakshi, Advocate For the Appellant Shri A. Cletus, ADC (AR) For the Respondent ORDER Per Shri Madhu Mohan Damodhar The facts of the case are that appellants had imported goods declared as used machine tools and unmachined tools i.e. hand tools and sought clearance of the same vide three Bills of Entry all dated 24.08.2009 under OGL (applicable to duty on good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate Ms. Kashivishalakshi made oral and written submissions which can be broadly summarized as under: (i) The machine tools is an inclusive portion of definition under Capital goods as per the Foreign Trade Policy on the purpose of usage of expression includes in any Statute. (ii) In Para 9.12 of Foreign Trade Policy that capital goods definition may be seen that it is not as if the definition covers only machine tools and not hand tools. Hand Tools are covered in the main definition itself. (iii) The definition does not include Hand Tools whereas the adjudicating authority says that by including Machine tools in the definition, Hand tools is excluded. Which is not sustainable under the law as the appellants already s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equipment , tool , instrument , device , and implement etc. Further the definition of capital goods in CENVAT Credit Rules and meaning given under Foreign trade Policy in respect of EPCG scheme could clearly indicate that hand tools are not excluded from the scope of definition of capital goods. 3. On the other hand, Ld. A.R Shri A. Cletus supports the impugned order. He contends that definition of capital goods in para 9.12 of the FTP only covers any plant, machinery, equipment, accessories required for manufacture or production, either directly or indirectly, of goods or for rendering services. In the said definition, only there is mention of machine tools and not hand tools . The list of examples of capital goods given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment that in hand tools have no such use. 5.2 In any case, within the same FTP in Chapter 5 relating to import of goods under Export Promotion Capital Goods (EPCG) Scheme all tools and not just machine tools have been included within the scope of capital goods in para 5.2. So also, in para 6.5.1 in the list of capital goods permitted to be imported / procured from DTA tools have been specifically indicated, without restricting its scope only to machine tools . 5.3 We further note the assertion of the Ld. Advocate in respect of subsequent import the Commissioner (Appeals) vide an order No.639-641/2013 dt. 18.04.2013 has also agreed with the view of the appellant and held that used tools imported will be squarely covered under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the term capital goods which the counsel for the respondent relies upon is extremely wide. It means any plant, machinery, equipment or accessories required for manufacture or production either directly or indirectly of goods or for rendering service including those required for replacement, modernisation, technological upgradation. The use of the term directly or indirectly is significant. The definition explains that it includes machine tools, catalyst for initial charge, machine tools, equipment for research and development, quality and pollution control . Such items as machine tools and equipment for test in research and development and pollution control are not required directly for manufacture or production, but are indirectly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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