R.K.ABICHANDANI, J. - (1.)LEARNED counsel appearing for the applicant states that the entire amount payable under the impugned order has already been paid by the applicant. He points out the amendment in para 2.17 of DGFT Notification No. 31/2005 dated 19.10.05 which, inter alia, provides that import of second hand personal computers/laptops, photocopier machines, air conditioners, diesel generating sets will only be allowed against a license issued in this behalf. He submits that the insertion of this provision would indicate that they arc being treated as capital goods even by the policy makers.
(2.)LEARNED authorized representative for the department relies upon the decision of the Kerala High Court in Customs Appeal No. 14 of 2005 decided on 7.4.2006. The High Court held that imported second hand copier machines would also be governed by the circulars No. 16/03, 19/03 and 20/05 issued in connection with EPCG scheme and that the finding of the Larger Bench of the Tribunal that those circulars related only to import under EPCG scheme could not be sustained.
(3.)HAVING regard to the facts and circumstances of the case, more particularly that the entire amount has already been paid, we direct that the amount of duty already paid will be treated as pre -deposit for hearing the appeal and there shall be waiver of pre -deposit of penalty amount payable under the impugned order. The appeal will now come up for final hearing in its due course. This application stands disposed of accordingly.