2008 (2) TMI 223

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....he case of the appellants that the various parts of the machine were shipped by a container vessel and the main machine was shipped later in a break bulk vessel due to technical reasons. The two consignments were accompanied by the respective bills of lading and invoices. The invoice covering the first consignment mentioned an amount of USD 7,500 as the F.O.B. value of the goods. The invoice which accompanied the second consignment mentioned an amount of USD 1,22,500 as the F.O.B. value of the goods. The F.O.B. value mentioned in the aforesaid purchase order was USD 1,30,000 equivalent to the sum of the F.O.B. values mentioned in the two invoices. A bill of entry was filed on 15-12-2004 by the party for clearance of the goods covered by the....

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.... this basis, the authority confiscated the goods with option for redemption against payment of fine of Rs. 3 lakhs. It also imposed a penalty of Rs. 70,000/-. The appeal filed by the party against the Additional Commissioners decision was dismissed by the Commissioner (Appeals) on merits. The present appeal is directed against the appellate Commissioner's order. 2. After careful scrutiny of the records, I find that there is a formidable link between the goods covered by the said bill of entry and the main machine subsequently cleared on payment of duty based on the F.O.B. value of USD 1,22,500. The main machine was allowed to be cleared as second-hand capital goods (albeit without licence) without any hitch. As early as on 18-1-2005, the....

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....itional Commissioner enabled the importer to redeem the goods on payment of duty on this basis as well as on payment of redemption fine and penalty. Yet, the authorities would not accept the obvious fact that the goods covered by bill of entry dated 15-12-2004 were parts of the machine tools for working metals, which were subsequently allowed to be cleared as second-hand capital goods on payment of duty. This approach cannot be countenanced. 3. Yet another infirmity found in the orders of the lower authorities is that, without considering the examination report of the Chartered Engineers, which certified the goods to be 'used', 'second-hand' goods, they held that the goods were restricted for import under the Foreign Trade Policy, 2004-0....