2007 (4) TMI 555

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....er authority enhanced the value to Rs. 19,23,871/- and held that the goods are liable for confiscation under Section 112 (d) of Customs Act, 1962 read with Rules 3(2) and 3(3) of the Foreign Trade (Development and Regulation) Act, 1992 with an option to redeem the goods on payment of redemption fine of Rs. 20 lakhs. A penalty of Rs. 5 lakhs was also imposed under Section 112 of Customs Act. The respondents challenged the order of the lower authority before the Commissioner (A). The Commissioner (A) gave a finding that the used photocopiers imported as second-hand capital goods are covered under Para 2.33 of the EXIM Policy for 2003-2007 as all the machines are less than 10 years old. Relying on the decision of the CESTAT in the case of M/s.....

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.... declared value as per Rule 10A of the Valuation Rules following the proper procedures. The Original Authority verified the prices of some second-hand machines and found that there is huge difference between the declared price and the verified price. This is a sufficient ground to reject the transaction value. The Commissioner (A) failed to appreciate the inclusion of Rule 10A in the Valuation Rules. (iii)   The Commissioner observations that the lower authority has not followed the proper procedure in discarding Rules 5, 6 & 7 of the Customs Valuation Rules is not correct. The goods being second-hand goods and as the importer failed to submit any evidence documentary or otherwise to conclusively prove the age of the machines. ....

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....sion of the Hon'ble Kerala High Court in Customs Appeal No. 11 of 2005, dated 7-4-2006, which has set aside the order of the Larger Bench of CESTAT in the case of CC, Cochin v. M/s. Atul Commodities Pvt. Ltd. as reported in 2005 (184) E.L.T. 135 (Tri. - LB). With regard to the valuation, he relied on the following decisions : (i)      Gajra. Bevel Gears v. CC, Bombay - 2000 (115) E.L.T. 612 (S.C.). (ii)    CC, Chennai v. Motor Industries Co. - 2002 (149) E.L.T. 1070 (Tri-Chennai). (iii)   Sampurna Graphics (P) Ltd. v. CC, Chennai - 2004 (164) E.L.T. 464 (Tri.-Chennai). (iv)   Mercedes Benz India Ltd. v. CC (Appeals), Mumbai - 2005 (182) E.L.T. 121 (Tri. - Mumbai). (v....

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....appeal. (iv)   Regarding valuation, he cited number of cases which hold that unless exceptions enumerated in Rule 4(2) of Valuation Rules exist, transaction value cannot be rejected. 5. We have gone through the records of the case very carefully. The issue relates to the valuation and the question of importability of second-hand copiers without licence considering them as second-hand capital goods. The issue of importability of the second-hand photocopier without production of licence was settled by the Larger Bench of the Tribunal in the case of M/s. Atul Commodities. Even though, the said decision has been set aside by the Hon'ble Kerala High Court [2006 (202) E.L.T. 392 (Ker.)], the Andhra Pradesh High Court and Calc....