TaxTMI 
TaxTMI 
2024 (2) TMI 825
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....ch stated that moulds are not old and only trials have been conducted on these moulds. It was stated by the supplier that the moulds are new and meant for the importer (appellant). 3. In view of the above, the consignments were examined by a Chartered Engineer who in his report stated that the items are old and used. It was also stated in the report that the goods are two to three years old, but found to be not rapidly used and not reconditioned. 4. As per para 5.1 (e) of the Foreign Trade Policy "second hand capital goods shall not be permitted to be imported under EPCG Scheme". 5. The appellant vide letter dt. 10.03.2014 requested for adjudication of the matter waiving the issuance of the show cause notice and personal hearing. Subsequently, the original authority passed the order dt. 02.04.2014 by which the benefit of Notification No.22/2013 dt. 18.4.2013 was denied and ordered for clearance of the goods on payment of appropriate duty. The value of the goods was enhanced to Rs.79,01,295/- and penalty of Rs.3,50,000/- under Section 112 (a) of the Customs Act, 1962 was imposed. A Redemption fine of Rs.7,90,000/- was imposed under Section 125 of the Customs Act, 1962. Aggrieved ....
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....er EPCG Scheme." From the above, it could be seen that what is not permitted is second hand capital goods. In the present case, there is nothing on record to show that moulds are second hand. Further the etching in the moulds clearly indicates the name SALZER and therefore, the moulds are not second hand. 6.5. The Chartered Engineer has not given copies of photo/video taken inside the moulds which would clearly indicate/show that the moulds are etched with the name SALZER. For reasons best known the above factual position has been conveniently ignored by the Chartered Engineer in his Certificate of Inspection. This is a crucial piece of evidence which is very much necessary to decide the issue. Further, it will also reveal the fact whether there is wear and tear of the etching. In this connection the appellant has furnished the drawing of the moulds sent along with their purchase order dated 15.6.2012 which would clearly indicate specifications and the etching of the name SALZER. Since the above etching has not been reported by Chartered Engineer, which is crucial to decide the present issue, the certificate of opinion is bad in law and facts. Hence no credence can be given to th....
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....partment. It is submitted that the appellant had accepted the misdeclaration of the imported goods and waived the SCN. Therefore, it is not legally correct for the appellant to take somersault and contest the assessment made by the original authority. If the appellant had contested the nature of the goods, a show cause notice would have been issued and the remaining procedures followed. As the appellant waived the show cause notice, the department could not proceed with further investigations. 9.1 It is submitted by Ld.A.R that the goods were examined on the request of the appellant and a Chartered Engineer's report was obtained. The said report confirms that the goods are used ones. The Commissioner (Appeals) in para-7 of the impugned order has discussed in detail with regard to the certificate issued by the Chartered Engineer. It has been clearly reported that the goods were found to be 'used' and 'not new'. As per para 5.1 (e) of the FTP, the import of second hand capital goods is not permitted under EPCG scheme and the appellant is not eligible for the benefit of notification. 9.2 The arguments put forward by the Ld. counsel for appellant that there is an etching of the word ....
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....t is thus argued by the counsel that due to the delay in import, the goods must have lost its new appearance. It is to be noted that in the purchase order the appellant has mentioned the supplier to comply with the specifications / requirements. So also, the purchase order shows the drawing number, description of the material (As per Annexure to Purchase Order No.00029). This proves that the appellant had submitted drawings of the items to their supplier. The said drawings are enclosed in the appeal paper book. These drawings show that the word 'SALZER' has to be etched on the moulds. The photographs of the imported goods have been placed before us. On perusal of these photographs, it is seen that the item bears the etching of the word 'SALZER'. The appellant has submitted that they do not have any other company outside India. It can be strongly inferred that a product which has the name 'SALZER' etched on them is intended to be used by the said company only. The appellant is using these moulds for the manufacture of switches. From the drawings attached to the purchase order as well as the photographs, the probable inference that can be drawn is that the goods have been manufacture....