Case Law Details
Pathange & Co. Vs Commissioner of Customs (CESTAT Hyderabad)
The short point to be decided is whether the consignment MFD copiers imported prior to 05.06.2012 when the restriction was imposed upon them are liable to confiscation under section 111(d) for violation of Foreign Trade Policy. Prior to this date, restrictions were imposed only on photocopiers and not on Multi Functional Digital Copiers explicitly. It is the case of the Revenue that used once copiers are prohibited for import, in the absence of any explicit exclusion for digital copiers, the same should also be held as photocopiers and hence restricted for import. Therefore, the confiscation in the impugned order is correct and needs to be upheld. It is the case of the appellant that the MFD copiers are a separate commodity known to the market whose import was not restricted prior to 05.06.2012 and therefore they were free to import second hand MFD copiers. Therefore, the import of the goods in the present case was not restricted and the confiscation under section 111(d) of the Customs Act, 1962 is not sustainable.
We find that this issue is no longer res-integra and the three Member Bench in the case of Asian Copiers [2015 (2) TMI 1221-CESTAT New Delhi)] has, by a majority decision, decided that import of Multi Functional Digital Copiers prior to 05.06.2012 was not restricted. While deciding this matter, they have also considered the judgment of the Tribunal Chennai in the case of Unitech Enterprises [2012(279)ELT 236 (Tri.-Chennai)], relied upon by the Ld. DR. Respectfully following the ratio of this decision, we hold that the import of the impugned goods is not restricted and their confiscation under section 111(d) is not sustainable and needs to be set aside. We have also considered the argument of Ld. Counsel that confiscation was also on account of under valuation of the goods which has been conceded by the importer. A plain reading of the Order-in-Original shows that confiscation was held under section 111(d) of the Customs Act, 1962 which pertains to import in violation of the restrictions and prohibitions and not under section 111(m) which deals with confiscation for under valuation, etc. We, therefore, find that the confiscation under section 111(d) of the Customs Act 1962 needs to be set aside. Consequently, the redemption fine imposed under section 125 on the appellant also needs to be set aside. The penalty imposed under section 112(a) of the Customs Act, 1962 is consequent to the goods being held liable for confiscation under section 111. As we find that the goods are not liable for confiscation under section 111(d), the penalty imposed under section 112(a) also needs to be set aside and we do so.
FULL TEXT OF THE CESTAT JUDGMENT
1. This appeal is filed against Order-in-Appeal No. 10/2011(H-II)Cus, dated 18.03.2011.
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