TMI Blog2021 (2) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... ported 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 certified that the goods are 4 to 10 years old, they are used and not reconditioned and the value of the second hand goods was appraised as USD 69395 [C F] - The photocopying machines do not have any single entry in Tariff and copying 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or/dealer who deals with such goods. The Department referred to a circular issued by the Central Board of Excise and Customs [CBEC] in Circular No.4/2008-Customs dated 12.02.2008 regarding the valuation of second hand machines. In terms of the said circular, the goods are required to be accompanied by a certificate issued by a Chartered Engineer or any equivalent in the Country of supply. The certificate was required to indicate, (i) Price of New machinery as in the year of its manufacture; (ii) Current CIF value of new machinery if purchased new; (iii) Year of the manufacture of machinery; (iv) Sale Price of the supplier; (v) Present condition of machinery; (vi) Nature of reconditioning or repairs carried our, if any, and the cost thereof and (vii) Expected life span. 4.It is not in dispute that the imported second hand goods was not accompanied by such a certificate. This resulted in the goods being examined for verifying the declaration regarding the goods and also to appraise the value of the goods by an approved Chartered Engineer. The same was accordingly done and the Chartered Engineer by report dated 21.08.2009 certified the goods as Old/Used Analogue Photocopiers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 second hand capital goods [second hand printing machines]. So far as 36 units of second hand photocopier machines falling under CTH No.90091200 and at the relevant time falling under CTH No.84433930 being restricted as per the Exim Policy, may be adjudicated by taking a lenient view as they have not applied for import license for the reason that the value of the goods are insignificant. 7.The appellant requested adjudication of case without issuance of show cause notice and personal hearing. The adjudicating authority, namely, the Commissioner of Customs [Seaport-Import], Chennai framed two issues for consideration, namely, (i) the licensing aspect of the imported goods and (ii) its valuation. The goods consisted of 201+36 units. The appellant admitted that 36 units were old/used Analogue Photocopiers and accepted that import of these used Photocopiers requires a license which the appellant did not possess and therefore requested that their case may be adjudicated. Thus, the dispute was in respect of 201 units which the appellant claimed to be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, namely, i. Whether the impugned goods which were declared as old and used digital multifunction print and copying machines can be considered to be a photocopiers and import of which requires a license? ii. Whether the fine and penalty imposed are excessive? iii.Whether the value determined by the Customs authorities for the impugned goods is proper or arbitrary? 10.So far as the valuation aspect is concerned, no question of law has been framed for consideration. Therefore, we need to take note of the finding rendered by the Tribunal on the question as to whether the goods which were imported by the appellant can be considered to be photocopiers, import of which requires a license in terms of para 2.17 of the FTP. After taking note of various decisions rendered by the Tribunal and the decision of the Hon'ble Supreme Court in Xerox India Ltd. vs. Commissioner of Customs, Mumbai [2010 (260) ELT 161(SC)] , the Tribunal held that the imported goods fall under CTH 84433100 and on facts held that the decision in Xerox India Ltd., cannot be made applicable to the appellant's case as in the said decision there was a classification dispute which is not the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 items are known as photocopier machines found almost in every street in cities which are popularly known as Xerox machines . The Tribunal referred to the Government of India's Directorate General of Supplies and Disposals [DGS D] rate contract list which classifies multifunction machines under the list of photocopier machines and the South Zonal Bench of the Tribunal had made a proposal for purchase of such machine and when quotations are received and purchase was made for photocopier machines, what was supplied is machines similar to the imported goods. Further, the Tribunal referred to the stand taken by the DGFT in an appeal filed before the Division Bench of this Court in Writ Appeal No.1802/2011 stating that second hand multipurpose photocopier is also restricted like a photocopier machine. Thus, by an elaborate order the Tribunal dismissed the appeal filed by the appellant and the only relief the appellant got before the Tribunal was a reduction in the penalty from ₹ 13,70,000/- to ₹ 6,85,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 allowing the appeal and answering the substantial questions of law in favour of the appellant. 15.Mr.M.Santhanaraman, learned senior standing counsel appearing for the respondents sought to sustain the impugned order and submitted that a thorough examination of facts had been done by the adjudicating authority, the said finding was considered for its correctness by the Tribunal and after re-examining the entire facts and also noting the legal position, the appeal was dismissed and there is no substantial question of law arising for consideration in this appeal warranting interference with the impugned order. 16.We have elaborately heard the learned counsels for the parties and carefully perused the materials placed on record. 17.As mentioned above, the only question to be considered is whether the finding rendered by the Tribunal holding that what was imported by the appellant was a restricted item was correct and whether the reasons assigned by the Tribunal to confirm t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein. 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 certified that the goods are 4 to 10 years old, they are used and not reconditioned and the value of the second hand goods was appraised as USD 69395 [C F]. The appellant's argument before the adjudicating authority is that the imported item is totally different and it can neither be considered as a photocopier machine nor part of computer and therefore, freely importable. The adjudicating authority took note of the unamended FTP and also the position after the amendment by notification dated 19.10.2005 and on facts, found that the digital multifunction machine imported by the appellant performs the function of photocopying as well as printing. It further held that the function is same as of the photocopying machine with additional facility of printing when connected to a computer. The correctness of this finding was re-examined by the Tribunal and in our considered view very elaborately. It analysed various uses of the machine and drew a comparative chart which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the Tribunal. The Tribunal has given elaborate reasons as to why the earlier decision of the co-ordinate Bench of the Tribunal would not be applicable and faulted the co-ordinate Bench of the Tribunal in Shivam International in not following the earlier decision of the coordinate Bench of the Tribunal not referring the matter to the Larger Bench of the Tribunal. 22.The reason assigned by the Tribunal for not following the earlier decision is perfect and justified. In fact, the decision in Shivam International appears to be not adhering to the principle of judicial discipline in following the earlier decision and taking a different view. In any event, a simple and straight forward reading of para 2.17 of the FTP, as is required to be done, and by applying the common parlance test impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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