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TMI Blog2006 (4) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 2.17 and are not consumer goods within the meaning of Exim Policy for the year 2004-2009 Commissioner of Customs is aggrieved by those orders and has preferred these appeals. For disposal of these appeals we may refer to the facts in CUA. No. 11 of 2005. 2. Respondent private limited company had filed B/E 154419/25-1-05 for import of various models of used photocopiers. The goods were invoiced at US $ CIF and the total assessable value worked out to Rs, 19,20,474/-. Goods were examined in the Office of the Customs and were found to be as per the declaration. The declared price was compared with the contemporary import price at other ports and the price of models of photocopier was found to be low. The details of said prices were given to the importer and it was proposed to raise a query on the importer and reject the transaction value in terms of Rule 10(A) of Customs Valuation Rules, 1988 and the value was proposed to be re-fixed under Rule 6/8 of Valuation Rules, 1988 based on the contemporary import price/Chartered Engineer Certificate. The proposed assessable value worked out to Rs. 24,11,741/-. It was noticed that the second-hand photocopiers are not importable under par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for import under para 2.17. Copy of policy circular is enclosed. Thus in view of the clarification cited above, used photocopiers are not importable under para 2.33 of Hand Book of Procedures to Foreign Trade Policy and the same is restricted under para 2.17 of the Foreign Trade Policy. 3. Respondent importer then filed reply to the show cause notice stating as follows : It has been the recent Practice for the past few months by the Custom House Cochin to adjudicate consignments of Used Photocopiers by misinterpreting the circular of DGFT Policy Circular No. 16 (RE-2003)/2002-07 dated 29-9-2003 and 19 (RE-2003)/2002-07, dated 11-11-2003 which are specifically issued for EPCG Schemes only and not for normal importers who are paying full duty and do not import under the EPCG Scheme. These circulars are intended to be applied to the EPCG Scheme wherein there is a provision for an exemption of customs duty with certain fulfillment criteria. Therefore the said two circulars issued under the EPCG Scheme cannot be suo motu applied to other importers paying full import duty and having no export obligations. 4. Objection filed by the respondent importer was considered by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said that purchase and sale of second-hand photocopiers can be considered as capital goods. Counsel further submitted that Circular Nos. 16, 19 and 20 are applicable to imports in general and that the second-hand photocopiers are the second-hand goods and are not freely importable as capital goods. Further Counsel also submitted as per para 2.3 of the Foreign Trade Policy 2004-2009 the DGFT is the final authority for interpretation of policy provisions which is final and binding on all the parties. In support of his contention he placed reliance on the decision of the Supreme Court in M.J. Exports v. CEGAT, 1992 (60) E.L.T. 161. Counsel submitted in any view of the matter the clarificatory notification issued by the DGFT would take effect retrospectively. Counsel submitted that the Tribunal has not properly appreciated the scope and ambit of Foreign Trade Policy 2004-2009. 7. Sri S.K Bagaria, Senior Counsel, appearing for the importer submitted that the Tribunal has correctly come to the conclusion that the second-hand photocopiers are capital goods within the meaning of paragraph 9.12 and freely importable under paragraph 2.17 and are not consumer goods. Counsel submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said question or doubt shall be referred to the Director General of Foreign Trade whose decision thereon shall be final and binding. Representations were received by the Ministry of Commerce and Industry seeking clarification as to whether second-hand personal computers/laptops are covered under the definition of second-hand capital goods and allowed freely as per the provisions of paragraph 2.33 of Hand Book of Procedures (Vol. 1), 2002-2007, provided they are not more than ten years old. The matter has been deliberated upon by the DGFT and held that those items are not covered under the definition of capital goods as defined under Paragraph 9.10 of Exim Policy and Paragraph 2.33 of Hand Book of Procedures (Vol. I). It was therefore clarified by circular No. 16/03 that second-hand personal computers/laptops can also not to be permitted for import under EPCG Scheme under the provisions of Paragraph 5.1 of the Exim Policy, even for service providers. In continuation of the policy circular No. 16/03, dated 29-9-2003 DGFT had further clarified by circular No. 19, dated 11-11-2003 that second-hand personal computers/laptops are covered under the definition of second-hand goods and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods imported by the importer will not fall under that category. Consequently the order passed by the Tribunal cannot be sustained and the same stands set aside. 11. Counsel appearing for the respondent referred to a decision of the Delhi High Court in Prashant Glass Works Pvt. Ltd. v. Collector of Customs, 1995 (77) E.L.T. 844, Narendra Udeshi v. Union of India, 2003 (156) E.L.T. 819, G.P. Dave & Sons v. Collector of Cus. & C.Ex., Ahmedabad, 2003 (156) E.L.T. 824 and submitted that in several cases courts have interfered with the circulars issued by the DGFT since those circulars are contrary to the policy and therefore this court should ignore circulars 15/03, 19/03 and 20/05. We find it difficult to accept that contention. First of all the decisions cited by the counsel are decisions where the vires of circulars were challenged in a petition under Article 22B of the Constitution of India. The circulars as such have not challenged in these proceedings and therefore respondents importers are bound by those circulars unless they are annulled in appropriate proceedings. Therefore the decisions cited by the importer are not applicable to the facts of these cases. Further we also noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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