TaxTMI 
TaxTMI 
2015 (2) TMI 1221
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....the said Para 2.17 of the Foreign Trade Policy for the purposes of requirement of licence. 2. Commissioner (Appeals) has granted relief to the respondent by observing as under Para 5 of Commissioner (Appeals) :- "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 27-6-2011, 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 ....
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....t of dispute is as to whether during period prior to 5-6-2012, which is the period of dispute in this case, old and used Digital Multifunction Printing and Copying Machines could be imported without 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. 5-6-2012 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 5-6-2012, 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 ....
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.... conclusion drawn by the ld. Judicial Member in this batch of appeals of Revenue when the date of import in each case was not dealt specifically nor the law applicable to each case of import at 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 Chartered Engineer Certificate RF (Rs. in lakhs) Penalty (Rs. in lakhs) 1. 5030196, dated 27-10-2011 M/s. Asian Copiers C/2805/ 2013 Rs. 16,23,639.40 Rs. 18,60,220/- Rs. 4.00 lakhs Rs. 2.00 lakhs 2. 6429721, dated 31-2-2012 M/s. Best Mega Inter-national C/56642/ 2013 Rs. 22,50,559/- Rs. 24,27,153/- Rs. 5,33,900/- Rs. 2,66,900/- 3. 6416486, dated 30-3-2012 Pearl Enter-prises C/56666/ 2013 Rs. 30,37,410/- Rs. 33,44,178/- Rs. 7,02,400/- Rs. 3,34,500/- 4. 5584917, dated 27-12-2....
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....imported. Subsequently, the Tariff nomenclatures has changed and in the present case the impugned goods were being classified under Heading 8443 31 00 for the Customs duty purposes. The ratio of the said decision was no longer relevant to decide the classification of the impugned goods when the new Heading 8443 31 00 completely described the product and there was no question of choosing one entry over the other. (ii) Supreme Court in the case of Atul Commodities [2009-TIOL-24SC-CUS = 2009 (235) E.L.T. 385 (S.C.)] held that the import of photocopying machines stand restricted on or after 19-10-2005. Neither in the amending Notification No. 31/2005, dated 19-10-2005 nor in the said judgment 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 machi....
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....g machine and Tribunal was posed with the question of classification. But real issue involved as is apparent from the facts of that case is whether during the period prior to 5-6-2012 old and used machine could be imported without license. But Tribunal arrived at decision on mere classification without examining applicability of the law prevailing on relevant date of import. 12. It is noticeable that in M/s. Unitech's case reported in 2012 (279) E.L.T. 236 (Tri.-Chennai), Tribunal recorded in Para 11 that upon introduction of new Heading 8443.3100, there in complete description 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) E.L.T. 385 (S.C.), import of photocopier machine was restricted on or after 19-10-2005 in terms of amending Notification No. 31/2005-CR, dated 19-10-2005. Hon'ble Court held that second-hand photocopier machine of all kinds, were subjected to licensing restrictions after....
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....all imports in present cases relate to period prior to 5-6-2012. Decision in each case depends on its own fact and context taking into consideration DGFT notification and S.C. judgment in Atul Commodities case 2009 (235) E.L.T. 385 (S.C.). 16. Import of goods to India is governed by Customs Act, 1962, in addition to any other law that may govern such import. Law of Customs tests the goods imported for permissibility of entry thereof into India according to the provisions therein. Import may be subject to restrictions, prohibitions or open. Apart from this, proper classification of import and valuation thereof for the levy is one of the requirements 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 impor....
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.... for direct re-use and not for recycling or final disposal. The Ministry of Environment and Forests has also confirmed that imports of second hand computers would require the permission of that Ministry. 4. In view of the above, the Board desires that the field formations should carefully and strictly implement the provisions of Hazardous Waste (Management, Handling and Transboundary) Rules, 2008. In particular, it should be noted that all imported goods falling within the purview of entry B 1110 of Part B of Schedule III of the said Rules, indicating second hand computers, would require the permission of the Ministry of Environment and Forests for import into India. It merits mention that the field formations should also refer to Rule 17 of the said Rules that treats contravening imports as illegal traffic requiring the importer to re-export the wastes at his cost within 90 days from the date of arrival. We must ensure that India does not become a destination for dumping junk electronic products. 19. Therefore, while import is basically governed by Customs law, applicability of other laws is looked into by virtue of provision of S.11 of the Customs Act, 1962. Accor....
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....e second-hand capital goods, whose import was restricted covered "photocopier machines", that multifunction machines, as discussed in detail in the Tribunal's judgment in the case of Unitech Enterprises (supra), are photocopier machines and that in view of this, even during the period prior to 5-6-2012, the import of second-hand multifunction machines required an import licence. He, therefore, pleaded that it is the order recorded by the Hon'ble Member (T), which is the correct decision. 24. Shri Priyadarshi Manish, Advocate, and Ms. Anjali, Advocate, ld. Counsels for the respondent, pleaded that in all these cases, the respondent had imported second hand multifunction machines during the period prior to 5-6-2012, that multifunction machines are classifiable under sub-heading 8443 310 0 while the "electrostatic photocopying apparatus operated by reproducing the original image via. and intermediate onto the copy (indirect process)" are classifiable under sub-heading No. 8443 39 30, that during the period prior to 5-6-2012, in terms of Para 2.17 of the EXIM Policy, while import of the second-hand capital goods will be allowed freely, second-hand personal computer, photocopier....
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....endment to Para 2.33 of the Handbook of Procedures, that though the Tribunal in the case of Unitech Enterprises v. CC reported in 2012 (279) E.L.T. 236 (T-Ch) has expressed a contrary view and has held that even during the period prior to 5-6-2012 import of second hand Digital Multifunction Print and Copier Machines required an import licence, it is settled law that judgment of a High Court is binding on the Tribunal and that in view of this, it is the order recorded by the Hon'ble Member (J), which is correct. 25. I have considered the submissions from both the sides and perused the records. 26. In this case, the import of second-hand multifunction machines have been made during the period prior to 5-6-2012 and the point of dispute is as to whether during that period, import of second-hand multifunction machines required a specific import licence in terms of Para 2.17 of the EXIM Policy, as the same stood during that period. There is also no dispute that while the multifunction machines are classifiable under sub-heading 8443.3100, the "electrostatic photocopying apparatus operated by reproducing the original image via and intermediate onto the copy (indirect proce....
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....012 (281) E.L.T. 178 (Mad.) and Sai Graphic Systems (supra) and in both these judgments, the Hon'ble High Court has held that the import of second-hand multifunction machines became restricted only w.e.f. 5-6-2012 and before 5-6-2012, these second-hand capital goods could be imported without any import licence. When on a particular issue, there is a judgment of particular High Court and there is no contrary judgment of any other High Court, that judgment of the High Court is binding on the Tribunal. 28. Moreover, it is seen that amendment to Para 2.17 of the EXIM Policy so as to specifically include the import of second-hand Digital Multifunction Print and Copier Machines in the restricted category had been preceded by a recommendation in this regard made by the Technical Review Committee held on 16-11-2011 in the minutes of its meeting. In this regard Para 5 of the minutes of the meeting are reproduced below :- "5. It was also informed that in the Exim Policy, there is no specific mention about multifunction devices. There are separate ITHS codes for multifunction devices and the photocopier machines. While discussing the issue, DIT representative mentioned that th....