- (1.)THE appellant imported 21 used photocopiers of various models on 29 -9 -2004. During the course of assessment, the value was found to the lower than contemporary import price and, accordingly, the value was revised and worked out to Rs. 12,32,066/ - which was accepted by the appellant. Further a view was also taken that second hand photocopiers import by the appellant was in contravention of Foreign Trade Policy and the photocopiers were restricted for import under paragraph 2.17 of the Policy as per clarification issued by DGFT vide Circular No. 19 dated 11 -11 -2003. The original authority confiscated the goods under Section 111(d) of the Customs Act, 1962 (the Act) and allowed to be redeemed on payment of a fine of Rs. 2,25,000/ - and also a penalty of Rs. 1,00,000/ - under Section 112 of the Act. Hence this appeal.
(2.)THE learned counsel for the appellant submits that the issue as regards importability of second hand photocopiers is settled by the decision of the Hon'ble Supreme Court in the case of Atul Commodities Pvt. Ltd. v. Commissioner of Customs, Cochin [2009 (235) E.L.T. 385 (S.C.)] wherein, it has been held that the photocopiers are capital goods and DGFT could not have issued a Circular clarifying that import of the photocopiers are restricted. Therefore, he submits that the decision of the lower authorities confiscating the goods and imposing fine and penalty is required to be set aside.
(3.)THE learned Superintendent (AR) submits that even though the goods are not liable to confiscation in view of the decision of the Hon'ble Supreme Court, the confiscation is sustainable and the penalty is imposable in view of the fact that the goods were undervalued. The undervaluation has not been challenged by the appellant at all and, therefore, penalty was imposable and goods are liable to confiscation.
I have considered the submissions made by both sides. As submitted by the learned counsel, the Hon'ble Supreme Court in the case of Atul Commodities Pvt. Ltd. (supra) has held that the DGFT has no authority to issue clarification that the import of photocopiers is restricted and such action could be taken only by the Central Government by issuing a Notification and this was done on 19 -10 -2005. Therefore in 2004, when the photocopiers were imported by the appellant, the same cannot be considered as restricted being capital goods. Therefore, photocopiers imported by the appellant have to be held as freely importable at the relevant time of import and the decision of the lower authorities in this regard cannot be sustained.