TaxTMI 
TaxTMI 
2026 (3) TMI 995
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....2018 was filed for clearance of goods declared as 'Old and Used Digital Multi-Function Devices (MFDs) with Standard Accessories & Attachment, Xerox WC 5845 & 5855'. These imported items were classified by the Appellant-Importer under Customs Tariff Heading 84433100. The department entertained the view that the Appellant has mis-declared the value of the impugned goods; therefore, the impugned goods were examined by the Chartered Engineer who found that the impugned goods were old and used part of MFD and determined the value which is higher than declared value. Further, the department has reason to doubt the truth of declared value under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (in short 'CVR 2007') and the said doubt was based on the expert's opinion of empanelled chartered engineer, who physically examined the goods and provided a detailed valuation which was considered by the department and the value of the impugned goods was enhanced. The Adjudicating Authority enhanced the value and allowed the redemption only for re-export. The penalty under Section 112(a) of the Customs Act, 1962 was also imposed on the ground that the Appellant....
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....s accuracy which the Appellant failed to do so satisfactorily. 5.2 The learned Authorized Representative further submits that the decision of the Tribunal in Appellant's own case (cited supra), is distinguishable on facts because in that case, the Tribunal observed that "the impugned order itself finds flaws in the Chartered Engineer Certificate as the Chartered Engineer failed to obtain current market value of the said goods."; whereas, in the present case, there is no such admission or finding of flaw in Chartered Engineer's methodology. 5.3 The learned Authorized Representative further submits that the judgment of the Hon'ble Apex Court in the case of CC vs. Atul Automation Pvt Ltd (cited supra), wherein it has been held that "redemption fine should be around 10% of the value and penalty around 5%", is not applicable in the present case because the reliance on that case for a standard quantum of fine or penalty is misplaced as the said judgment lays down a principle, not a fixed formula. 6. We have considered the submissions made by both the parties and perused the material on record. We find that in the present case, the Appellant has imported MFDs which were declared ....
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....garding importation being in violation of Import Policy, the same being an admitted fact, does not require further elaboration. On the second point regarding violation of provisions of Hazardous Waste Rules, 2016, we have carefully examined the submissions of the appellants. First of all, we note that the original authority held against the appellants substantially on the ground that the product is waste. In this connection, we have perused the definition "waste". Rule 3(1), (38) of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 defines waste as under :- "waste" means materials that are not products or byproducts, for which the generator has no further use for the purposes of production, transformation or consumption. 9. We note that the products under import are MFDs having use as digital multifunctional devices as intended. It is not clear as to how when the product imported in the form of whole machine and having certified functional life of 5/7 years, the same can be considered as waste. Even if the items imported require certain reconditioning, repair, it will not make the product as waste. We have perused the certificates ....
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....ion to the Pollution Control Board and a time line is prescribed for the same. After considering these time lines, the Committee decided that the implementation of EPR can start from 1-5-2017 and advised the Customs authorities to permit clearance of the imported goods without EPR authorisation till 30-4-2017. 12. Regarding Schedule III Part D of the Hazardous Waste Rules, 2016, we note that the said part deal with list of other waste for import and export without permission of Ministry of Environment. Entry No. B1110 deals with electrical and electronic assemblies destined for direct reuse and not for recycling or disposal. The condition for import of used MFDs was mentioned therein. The said condition was later amended vide Notification dated 6-7-2016. The effect of amendment is that the trader also can import the said MFDs which are not domestically manufactured. 13. Regarding production of EPR authorisation under 2011 Rules, we note that the appellant has produced an authorisation dated 21-4-2017 issued by the Central Pollution Control Board. Another condition is the MFDs shall be for printing A3 size or above. As per the technical certificate issued by the Ch....
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..... v. UOI [2016 (340) E.L.T. 27 (P&H)] examined the scope of Section 125 and observed as below :- "5... ... ....Section 125 of the Act leaves option to the officer to grant the benefit or not so far as goods whose import is 'prohibited' but no such option is available in respect of goods which can be imported, but because of the method of importation adopted, become liable for confiscation. Hon'ble Madras High Court in T. Elavarasan [2011 (266) E.L.T. 167 (Mad.)], was pleased to rely on the said judgment of Hon'ble Andhra Pradesh High Court and held that an option has to be given to the petitioner to pay the applicable customs duty and the redemption fine and to get the gold jewellery released, as per Section 125 of the Customs Act, 1962. In the context of Section 125 if the word "prohibited" is construed as to apply in respect of every violation of any regulation or restriction or statutory procedural requirement, the word 'shall' in said Section would be rendered redundant and meaningless. If the definition of 'prohibited goods' is applied in the context of Section 125, it would result in absurdity rendering the word 'shall' redundant and otiose, because there cannot be a....
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....detention/demurrage charges for one year, as the goods were lying in Port, and also based on past practice in such cases, he pleaded for reduction of fines. 19.1. We note that Hon'ble Kerala High Court in Office Devices [2009 (240) E.L.T. 336 (Ker.)] and in Navpad Enterprises [2012 (278) E.L.T. 172 (Ker.)] held that the discretion vested under Section 125 of Customs Act should be exercised in an objective manner. In the present case, no detailed reasoning has been recorded in the impugned order for fines which are apparently on the higher side when compared to consistent practice of imposing 10% of value as fine. We also have to bear in mind the detention charges to be incurred on goods. The guiding principle for fixing the quantum of redemption fine when the goods were allowed to be cleared for home consumption is generally that the importer should not gain out of imported goods which were in violation of the applicable law. Keeping that principle in mind, the margin of profit likely to be earned by the appellant through such act which is in contravention of law is sought to be diminished or removed. Having noted the above principle and also keeping in mind the enhanced v....
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.... for M/s. Atul Automation Pvt. Ltd. and Rs. 5 lakhs (Rupees five lakhs only) on Shri Ketan Kamdar. The penalties imposed under Section 112(a) on M/s. Parag Domestic Appliances is reduced to Rs. 7 lakhs (Rupees seven lakhs only)." It is seen from the said decision that there was no absolute confiscation and approximately 10% of the value of the goods was imposed as redemption fine in the similar facts and circumstances. Penalty of 5% of assessable value was imposed in the similar facts and circumstances. The said decision of Tribunal was approved by the Hon'ble Apex Court. The Hon'ble Apex Court dismissed the appeal filed by Revenue citing following grounds :- "7. We have considered the submissions on behalf of the parties. The MFDs were imported in October-November, 2016. They were detained by the customs authorities opining that the imports had been made in violation of the Foreign Trade Policy, 2015- 2020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Management Rules. 8. Clause 2.01 of the Foreign Trade Policy provides for prohibition and restriction of imports and exports. The export or import of restricted goods can be made under Cla....
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....12(a) of the Customs Act, 1962. 10. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the Customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as "other wastes" under Rule 3(1), (23) of the Waste Management Rules, which reads as follows :- "Other wastes means wastes specified in Part B and Part D of Schedule III for import or export and includes all such waste generated indigenously within the country." 11. Rule 13(2) provides the procedure for import of other wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions used Multifunction Print and Copying Machines (MFDs). Entry 4(j) lists out five documents required for import of used MFDs. The respondents have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has right....
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....the goods. The Tribunal had directed release of goods at redemption fine of approximately 10% of the assessable value of the goods and imposition of penalty at the rate of 5% of the assessable value of the goods. In that context, the Revenue has inappropriately attempted to rely on and the selectively pick up words, out of context from the decision of Hon'ble Apex Court. 9. The next issue relates to revision of assessable value on the strength of Chartered Engineer certificate, the impugned order records the following for the purpose of approving the enhanced value on the strength of Chartered Engineer certificate :- "3. Further Shri Rajesh John in his report dated 18-92018 stated that despite best efforts, CIF value of the new machines in the year of manufacture could not be found by browsing Internet and referred websites but he suggested the price which revealed significantly higher values of identical/similar goods. Thus the transaction/declared value was rejected under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (In short 'the CVR, 2007') and re-determined on the basis of the report of the Chartered Engineer. As the....