2013 (5) TMI 808 - AT - Customs

Tribunal remands case to reevaluate classification of cash dispenser

AGS TRANSACT TECHNOLOGIES LTD. Versus C.C. (IMPORT), NHAVA SHEVA

AGS TRANSACT TECHNOLOGIES LTD. Versus C.C. (IMPORT), NHAVA SHEVA - 2014 (314) E.L.T. 465 (Tri. - Mumbai) Issues Involved:1. Classification of Procash 1500Xe automatic cash dispenser.2. Denial of exemption under various notifications.3. Demand of Rs. 10,31,78,856/- under Section 28(1) of the Customs Act, 1962 along with interest.4. Confiscation of 1375 Nos. of Procash 1500Xe under Sections 111(d) and 111(m) of the Customs Act, 1962.5. Imposition of penalty under Section 114A of the Customs Act, 1962.6. Imposition of penalty under Section 114AA of the Customs Act, 1962.Detailed Analysis:1. Classification of Procash 1500Xe Automatic Cash Dispenser:The primary issue revolves around whether the Procash 1500Xe should be classified as an ATM or merely a cash dispenser. The appellant argued that the machine qualifies as an ATM due to its capabilities of performing various banking transactions such as cash withdrawal, balance enquiry, cheque book request, statement request, pin change, fund transfer, and mini statement, as per Board's Circular No. 41/2002-Cus. The Tribunal noted that the definition of an ATM by RBI includes machines that provide access to financial and non-financial transactions, not just cash dispensing. The adjudicating authority is directed to verify if the machines possess additional features like fund transfer, bill payment, balance enquiry, and mini statements, which would qualify them as ATMs.2. Denial of Exemption Under Various Notifications:The appellant claimed exemptions under Notification No. 25/2005, Notification No. 21/2002, and Notification No. 69/2004. The Tribunal emphasized that the classification of the machine as an ATM or cash dispenser is crucial for determining the eligibility for exemption. The adjudicating authority must reassess the classification based on the additional features of the machine, as discussed.3. Demand of Rs. 10,31,78,856/- Under Section 28(1) of the Customs Act, 1962:The demand was raised based on the classification dispute. The Tribunal noted that if the machine is classified as an ATM, the demand would need to be reconsidered. The adjudicating authority is instructed to re-evaluate the demand after determining the correct classification of the machine.4. Confiscation of 1375 Nos. of Procash 1500Xe Under Sections 111(d) and 111(m) of the Customs Act, 1962:The machines were held liable for confiscation due to alleged mis-declaration. The Tribunal highlighted that the correct classification would impact the confiscation decision. The adjudicating authority is to reassess the confiscation based on the classification findings.5. Imposition of Penalty Under Section 114A of the Customs Act, 1962:A penalty equal to the duty demanded was imposed. The Tribunal pointed out that if the extended period of limitation is not invocable due to the classification issue being a matter of interpretation, the penalty may not be justified. The adjudicating authority must reconsider the penalty in light of the reclassification.6. Imposition of Penalty Under Section 114AA of the Customs Act, 1962:A penalty of Rs. 2,00,00,000/- was imposed for alleged mis-declaration. The Tribunal directed the adjudicating authority to re-evaluate this penalty after determining the correct classification and considering the nature of the alleged mis-declaration.Conclusion:The Tribunal set aside the impugned order and remanded the matter back to the adjudicating authority for de novo consideration. The adjudicating authority is to verify the additional features of the Procash 1500Xe and reclassify the machine accordingly. The demand, confiscation, and penalties are to be reassessed based on the correct classification, following the principles of natural justice.Disposition:The appeal and stay application were disposed of with directions for re-evaluation by the adjudicating authority. The order was pronounced in open Court on 1-5-2013.