TaxTMI 
TaxTMI 
2016 (6) TMI 908
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....y the appellant, a Chartered Engineer was engaged to carry out the valuation of the goods. The Chartered Engineer submitted his report and in view of this report, the value declared by the appellant was accepted. However the goods imported being used/second hand equipment, the Department entertained the view that the goods are not freely importable. The appellants vide their letter dt. 01/09/2012 waived the requirement of show-cause notice and the case was taken up for adjudication. Thereafter original authority vide its order dt. 10/09/2012 confiscated the two numbers of digital still image video cameras giving an option to the appellant to redeem the same on payment of fine of Rs. 1,10,000/-. A penalty of Rs. 50,000/- was also imposed und....
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....ments, he relied upon the judgments laid by the Hon'ble High Court of Madras in CC, Turicorin & anr. Vs. City Office Equipment & others [2013-TIOL-359-HC-MAD-CUS]. 3. Against this, the learned AR Shri R. Sekhar submitted that the goods imported viz. video cameras would not fall under the category of second hand capital goods. These goods would fall under the category of other second hand goods as provided in para 2.17 of the FTP. That the import of second hand goods is restricted and therefore the goods were rightly confiscated by the authorities below. He submitted that the appellant has failed to establish that the goods imported would fall under the definition of capital goods as provided in para 9.12 of FTP. He argued that para 2.33 ....
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.... second sub-clause deals with all other second hand capital goods. It is shown against all other second hand capital goods that these are freely importable. The definition of capital goods is given in para 9.12 of the FTP which is as under:- 9.12. "Capital Goods" means any plant, machinery, equipment or accessories required for manufacture or production, either directly or indirectly, of goods or for rendering services, including those required for replacement, modernisation, technological upgradation or expansion. It also includes packaging machinery and equipment, refractories for initial lining, refrigeration equipment, power generating sets, machine tools, catalysts for initial charge, equipment and instruments for testing, res....
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....which are not allowed free import, all other second hand capital goods including other enumerated restricted category of second hand capital goods are permitted free import. Thus, with no distinction maintained between other restricted category of second hand capital goods and second hand capital free goods, we do not find any good ground to read in Clause 2.33, a restriction on the free import of second hand digital multifunction print and copier machines. Thus reading sub clause (a) to Clause 2.33, if there is a restriction to be read on free import, it is only with reference to personal computers/laptops from among the restricted category of second hand capital goods group, which means, other restricted category under second hand capital....
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.... the conclusion that the activities proposed to be carried out by the appellant with these goods (cameras) are not covered within the scope of the definition of services as mentioned in para 9.52 of FTP. That therefore they would not fall into the category of capital goods. It is to be noted that the second para of the definition of capital goods say that it includes goods used for service sector. The description of goods as per Bill of Entry is "digital still image video cameras transmission apparatus for radio broadcasting or television (used equipment)". The authorities below have assumed without any basis that the activities proposed to be carried out using the imported goods cannot earn any foreign exchange. The learned consultant for ....