AI Drafter 
TaxTMI 
TaxTMI 
2013 (5) TMI 808
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..../s 111(d) and 111(m) of the Customs Act, 1962 which were allowed to redeem on fine of Rs. 8,50,00,000/-. (e) A penalty of Rs. 10,31,78,856/- under Section 114A of the Customs Act, 1962. (f) A penalty of Rs. 2,00,00,000/- under Section 114AA of the Customs Act, 1962. 2. Brief facts of the case are that based on the specific information that the appellants were importing cash dispenser and mis-declaring the same as ATM to avail benefit of exemption under Customs Notification No. 25/2005-Cus., dated 1-3-2005, investigations were initiated. Live consignments vide bill of entry No. 706092, dated 31-3-2008 with description of goods as Automated Teller Machine having declared assessable value of Rs. 2.23 crores, was detained and examined. Goods were supplied by M/s. Wincor Nixdorf. It was found that the said description was nowhere inscribed on the machine. The goods were seized. The statement recorded before the DRI were given rise to issue of show cause notice proposing the classification of the above machines under CTH 8472 90 30 and denying the benefit of Notification No. 25/2005-Cus. The show cause notice was adjudic....
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....hen no penalty for the normal period is imposable on the appellant and the goods also not liable for confiscation as the issue of interpretation of Circular 41/2002. 4.3 Therefore, he prays that the impugned order be set aside and the appeal be allowed with consequential relief. 5. On the other hand, the learned AR Shri K.S. Mishra, Addl. Commissioner (AR) appearing for the Revenue strongly opposed the contention of the learned Counsel and submitted that on liberal meaning it was mentioned as 'Cash dispenser' and the same has been mis-declared by the appellant as 'ATM'. He further submitted that in the case of NCR Corporation India P. Ltd. (supra) this Tribunal has clearly held that the machine which does not have the facility to receive or accept cash is not 'ATM' machine. Admittedly in the case of the appellant, this machine is not capable of accepting or receiving the cash. Therefore, the decision of NCR Corporation India P. Ltd. (supra) is squarely applicable to the facts of this case. As the appellant has mis-declared the cash dispenser as ATM, therefore the extended period of limitation is invocable. Accordingly, the impugned order is to be upheld. 6. ....
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....alify to be an ATM if it provides the customer of bank the facility of assessing their account not only for dispensing cash but also to carry out any other financial and non-financial transaction. The said meaning given by RBI to an ATM machine has also been applied by RBI under its Master Circular dated 2-7-2007, which is applicable to all computerized machines having facility of accessing the bank account for dispensing cash and to carry out other financial and non-financial transactions as ATMs, irrespective of whether they do have the facility to accept cash/cheques deposit or not. 8.1 As per the 'Dictionary of Banking', an ATM means - 'Commonly known as ATM. This machine permits the holder of the appropriate magnetic encoded card to obtain funds anytime of the day or night. Additionally the balance of the account may be obtained and cheque books and statements may be ordered. The machines are often called cash dispensers, although each bank has its own name for this service. UK banks now have the facility to permit customers to use encoded cards to obtain cash while in some European countries there is the possibility of this service being extended. 8.2 Wikip....
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....of goods is to be determined by commercial identity test and not by functional test. Goods are to be clarified as to how they are referred in the market by those who deals with them. 8.6 Therefore, we are convinced that mere absence of one faction such as 'deposit of cash/cheque' would not be decisive to ascertain whether a machine is an ATM or a cash dispenser for the purpose of extending exemption. 8.7 The Board Circular No. 41/2002-Cus., dated 11-7-2002 distinguishes cash dispenser from an ATM and seems to suggest that cash dispenser can only dispense cash. The distinctive function between a 'Cash Dispenser' and an "ATM" is then drawn by the Board with use of word 'only' before words "dispense cash". Therefore, an ATM would be a computerized machine having more banking facilities and not just of dispensing cash. The Board Circular, itself clarifies that the ATM is a machine which not only dispense the cash but having other banking functions like depositing cash, collecting cheques, bill payments, fund transfers etc. The word "like" is an illustrative and not restrictive. Therefore, if the machine which is having the functions such as cash dispensing, bill payment....