TaxTMI 
TaxTMI 
2014 (5) TMI 563
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....p; "The issue of requirement of license with reference to Para 2.17 of Rules (supra) has been amply addressed to in the case of M/s Shivam International and M/s Sree Maa Enterprises v. C.C. Cochin by CESTAT , Banglore vide final order No. 4052416/2011 dated 27.06.2011, wherein it was held that the subject goods do not fall under the restriction imposed. This case laws, it is observed has since, attained finality. It is admitted that the imported goods are not merely photocopy machines but are having both printing, copying machines while relying upon the HSN explanatory goods to sub-heading 84.43. It is further an admitted fact in the bill of entry itself and also by the referred Chartered Engineer Certificate that the impugned goods are multi functional in description and nature." 3. The Revenue's appeal is on the ground that the decisions relied upon by Commissioner (Appeals) were duly taken into account by the Tribunal in the case of Unitech Enterprises Vs. Commissioner of Customs reported in 2012 (279) ELT-236 laying down that inasmuch as Para 2.17 of Foreign Trade Policy restricts photocopier machine and inasmuch as Digital Multifunction Printing and Copying Machine are ....
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....out licence or not . We find that from the Minutes of the Technical Review Committee of Ministry of Environment and Forests held on 16.11.2011 which have been obtained by the Respondent from the Ministry under Right of Information Act, it is clear that Government itself treated Digital Multifunction Printing and Photocopying Machines as different from Photocopying Machines and for this reason only, felt the need to mention the old and used Digital Multifunction Printing and Photocopying Machines in para 2.17 of the Foreign Trade Policy, as items restricted for import and accordingly w.e.f. 05.06.2012 para 2.17 of the Foreign Trade Policy was amended by adding old and used Digital Multifunction Printing and Photocopying Machine, in this para as the item restricted for import. It is, therefore, clear that during the period prior to 05.06.2012, the old and used Digital Multifunction Printing and Photocopying Machines could be import without any licence. We find that same view has been taken by Co-ordinate Bench of the Tribunal in case of Shivam International (Supra) and also by the Hon'ble Madras High Court in cases of Anand Impex (Supra) and sai Graphic System V/s Commissioner....
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....t the relevant point of time was discussed in each case. As date of each case of import was not dealt in the draft order, I propose to record my separate order in the following paragraphs depicting the date of importation, declared value, Redemption fine and penalty imposed in adjudication in each of the appeals as under: Sl. No. Bill of Entry No. and date Importer Assessee Appeal No. Declared Value Assessed value based on Charted Engineer Certificate RF (Rs. in lakhs) Penalty (Rs. in lakhs) 1. 5030196 dt.27.10.11 M/s Asian Copiers C/2805/13 Rs.16,23,639.40 Rs.18,60,220 Rs. 4.00 lakhs Rs.2.00 lakhs 2. 6429721 dt.31.02.12 M/s Best Mega International C/56642/13 Rs.22,50,559 Rs.24,27,153/- Rs.5,33,900 Rs.2,66,900/- 3. 6416486 dt.30.3.12 Pearl Enterprises C/56666/13 Rs.30,37,410/- Rs.33,44,178 Rs.7,02,400 Rs.3,34,500/- 4. 5584917 dt.27.12.11 M/s Prius Technologies C/56661/13 Rs.30,64,935/- Rs.33,48,328/- Rs.7,03,000 Rs.3,35,000/- 5. 6416490 dt.30.3.12 Sunrise Enterprises C/56660/13 Rs.30,03,201/- Rs.30,64,935/- Rs.6,8....
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....ted on or after 19.10.2005. Neither in the amending Notification no. 31/2005 dated 19.10.2005 nor in the said judgement of the Supreme Court, there was any reference to the import restriction being limited to photocopying machines falling under any particular Tariff item. The language of the amending notification clearly says that import of capital goods shall be allowed freely, however, second hand personal computers/laptops and photocopier machines etc. will only be allowed against the licence issued in this behalf. It was, therefore, very clear that secondhand photocopier machines of all kinds have been placed under the restricted category. The restriction is not with reference to any particular Tariff item. (iii) There was no warrant to read the expression appearing in the DGFT Notification as conforming to any one particular expression used in the Tariff as these expressions were not identical and secondly, no Tariff item was mentioned in the DGFT Notification. The expression "photocopier machines" used in the context of amendment made to the EXIM policy by Notification No. 31/2005, which has been issued in the public interest to mean all kind....
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....iption of the goods and there shall be no question of choosing of any other entry. The said entry covers machine which perform two or more of the function of printing, copying or facsimile transmission capable of connecting to an automatic data processing machine or to a network. As is held by the Apex Court in Atul commodities 2009 (235) ELT 385 (S.C.), import of photocopier machine was restricted on or after 19.10.2005 in terms of amending notification No. 13/2005-CR dated 19.10.2005. Hon'ble Court held that second hand photocopier machine of all kinds, were subjected to licensing restrictions after 19.10.2005. The restriction imposed by the notification was not with reference to HSN based tariff items but licensing requirement was extended to old and used photo copy machine of any description falling under any tariff entry. When the Central Government issued restriction notification in public interest, such restriction is applied to all kinds of second hand photocopier machines in general but not limited to any particular type of photocopier machine. Accordingly, nothing can be inferred that restriction related to a particular type of goods. 13. The Exim Policy by notific....
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....nts of the Customs law. The goods imported may also be notified to be exempt from levy of duty fully or partly according to legislative mandate. Therefore Customs Authority is independent of its jurisdiction defined by the law of Customs. They are Administrator of Customs law vested with power to judge applicability of provisions of any other law relating to the goods imported or exported in addition to the administration of law of Customs. He is the best judge in the customs station to allow, prohibit or restrict entry of the imported goods into the territory of India on the basis of law governing the imports. Construction of the provision of customs law in any manner to denude the Customs Authority from exercise of his power shall defeat purpose of section 11 of the Customs Act, 1962. Accordingly Customs law cannot be given go by at that law continues to have its independence. 17. Import of the second hand photocopier was subject to restriction. Those were restricted goods as early as 19.10.2005 by Notification No. 31/2005. In addition to such restriction, the Hazardous Waste (Management Handling and Transboundry) Rule of 2008 additionally recognized such goods w.e.f. 5.6.2012....