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TMI Blog2021 (2) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... bench to be erroneous, being contrary to the judgment of the Hon'ble Supreme Court of India? 3.Whether the Tribunal was right in interpreting the meaning of the term "photocopier machines" appearing in para 2.17 of the Foreign Trade Policy based on common parlance by assuming the intention of the Government to cover photocopies in general without properly considering the ration of the judgment of the Hon'ble Supreme Court of India in the Akbar Badruddin Jiwani case?" 3.The appellant, a proprietary concern is engaged in the business of import and trading of digital multifunction print and copying machines having its office at New Delhi. They had filed bill of entry dated 13.08.2009 for clearance of "Old/Used Analogue Photocopiers and Old/Used Digital Multi functional (Print and Copying) Machines"of various models at a declared value of USD59870 [C&F] from a supplier based in United States of America. The Department found the goods to be second hand goods not consigned from any manufacturer or from the user of the goods, but were procured from a distributor/dealer who deals with such goods. The Department referred to a circular issued by the Central Board of Excise and Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the value of the goods have to re-determined under Rule 9 of the Customs Valuation [Determination of Price of Imported Goods] Rules, 2007 [hereinafter referred to as "CVR"]. The Chartered Engineer appraised the value of the goods at USD 69395 [C&F]. 6.The appellant vide letter dated 21.08.2009 stated that the price and value offered by their supplier and the actual transaction price were true, however, agreed to accept USD 69395 [C&F] as assessed by the Chartered Engineer. The appellant further stated that the DGFT authorities vide notification No.31/2005 dated 19.10.2005 have restricted second hand photocopier machines which was originally falling under Customs Tariff Heading [CTH] No.90091200 which shall later included in Customs Tariff Heading No.84433930 in December 2006; imported goods falling under Customs Tariff Heading No.84433100 and cannot be considered as photocopier machines nor parts of computer as the predominant feature of the machine is printing with ancillary function of copying but not photocopying. The appellant explained the usage of the said machinery and contended that the same should be allowed under "free" category in terms of para 2.17 of Exim Policy as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat import of such items require a license which the appellant did not possess and therefore, the goods are liable for confiscation under section 111(d) of the Act. 8.The next issue, namely, valuation was taken up for consideration by the adjudicating authority and proceeded to determine the value of the goods. Thus, the adjudication having been completed the order-in-original dated 26.08.2009 was passed rejecting the value declared by the appellant and re-determining the same at USD 69395 [C&F] equivalent to Rs. 34,15,893/-[AV] under Rule 9 of CVR 2007; confiscate the goods under section 111(d) of the Act r/w. Section 3(3) of the FTDR with an option to redeem the same on payment of find of Rs. 10,25,000/- under Section 125 of the Act subject to payment of applicable rate of duty; penalty of Rs. 13,70,000/- was imposed on the appellant under section 112(a) of the Act. 9.The appellant challenged the said order before the Tribunal. After considering the submissions made by the appellant, the Tribunal framed three issues for consideration, namely, i. Whether the impugned goods which were declared as "old and used digital multifunction print and copying machines" can be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines whether or not combined with printers and facsimile machines are classified elsewhere as also machines which perform two or more functions of printing, copying or facsimile transmission as in the appellant's case. Further, the Tribunal noted that Notification No.31/2005 was issued in the public interest and was intended to cover all kinds of photocopiers irrespective of its classification. The Tribunal dealt with the arguments of the appellant that the imported machine is different from analog photocopiers but rejected the said contention on the ground that the notification dated 19.10.2005 does not carve out any such distinction. 12.In Paragraph 14 of the impugned order, the Tribunal has drawn a comparison between analog photocopier machine and the digital photocopier machine which was imported by the appellant and on facts held that the multifunction printing and copying machines are also essentially digital photocopiers which can be connected to an automatic data processing machine and thus, the printing function of the machine sub serves and is essential to produce a photocopy. The Tribunal observed that they took judicial notice of the fact that the imported ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mon India Ltd. vs. Commissioner of Customs, Mumbai [2011 (269) ELT 289 (SC)] and the decision of the Bangalore Tribunal in the case of Shivam International vs. Commissioner of Customs, Cochin [2012 (286) ELT 545 (Tri-Bang) to support the argument that the Tribunal ought to have followed the decision of the co-ordinate Bench of the Tribunal and in not doing so, it has created a judicial uncertainty. Further the learned counsel commented upon the finding of the adjudicating authority, more particularly, in paragraph 7 of the order-in-original dated 26.08.2009 and submitted that the finding of the authority was erroneous. Placing reliance on the decision in the case of Akbar Badruddin Jiwani vs. Collector of Customs [1990 (47) ELT 161(SC)], it is submitted that in the taxing statute words used are to be understood in common parlance or commercial parlance, especially when the Tariff Entry has not been used in a scientific or technical sense. For the same proposition, reliance was placed on the decision of the West Regional Bench, Bombay in the case of Collector of Customs, Bombay vs. Hargovindas & Co. [1987 (29) ELT 975(Tribunal)]. On the above grounds, the learned counsel prayed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported only in accordance with provisions of FTP, ITC(HS), HBP vl. Public Notice or an Authorisation issue in this regard. 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. Import of re-manufactured goods shall be allowed against a license." 19.In terms of the above, all second hand goods except second hand capital goods are restricted for import. It is not in dispute that 201 machines which were imported by the appellant were second hand goods. Thus, going by the first limb of para 2.17, license is required. In the second para, the Policy allows import of second hand capital goods including refurbished/reconditioned spares without obtaining any license. There is a restriction for import of second hand Photocopier machines and other items mentioned therein. The appellant did not produce a Chartered Engineer's certificate when the goods were imported. Therefore, the goods were subjected to examination by Docks Officer in the presence of a Chartered Engineer and certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lsewhere as also machines which perform two or more functions of printing, copying or facsimile transmission as in the case of the imported goods. Further the Tribunal noted that DGFT notification No.31/2005 dated 19.10.2005 uses the expression "photocopier machines" and therefore, there is no warrant to read the expression appearing in the DGFT notification as conforming to any one particular expression used in the Tariff as these expressions are not identical and no Tariff item is mentioned in the DGFT notification. 21.The appellant seeks to take forward his case by referring to the decision in the case of Anand Impex. Firstly, the said decision was rendered in a writ petition filed by the importer seeking provisional release of the goods as the goods were detained by the customs authorities. The finding rendered in the writ petition cannot in any manner advance the case of the appellant as there was no adjudicatory process followed in the said case and we are not persuaded by the observations made therein as there was no substantial question of law which was decided in the said case. The appellant faults the Tribunal for having not followed the decision of the co-ordinate Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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