BEDY ASSOCIATES Vs. COMMISSIONER OF CUSTOMS, COCHIN

JUDGEMENT

(1.) THOUGH today there is no representation for the appellant despite notice, we are inclined to dispose of this matter which is squarely covered against the Revenue by the judgment of the Honble Supreme Court in Atul Commodities Pvt. Ltd. v. Commissioner of Customs, Cochin - 2009 (235) E.L.T. 385 (S.C.). Learned SDR has been pleased to give us a copy of the Supreme Courts judgment in response to a query from the Bench.

(2.) THE appellant had imported computer peripherals without any import licence. According to the department, the above items are second -hand capital goods and, in absence of import licence, the department proposed to confiscate the same under Section 111(d) of the Customs Act and also to impose penalty on the importer under Section 112 of the Act. The original authority ordered confiscation of the goods with option for redemption against payment of fine of Rs. 45,000/ -. It also imposed a penalty of Rs. 15,000/ - on the importer. In an appeal filed by the assessee, the learned Commissioner (Appeals) only reduced the quanta of fine and penalty to Rs. 35,000/ - and Rs. 10,000/ -, respectively. The present appeal of the party is against the appellate Commissioners order upholding the Order -in -Original on merits.

(3.) THE learned Commissioner (A), in the impugned order, relied on the judgment of the Honble High Court of Kerala, dated 7 -4 -2006, in Customs Appeals No. 11, 13 -19/2005 and No. 1 -13/2006 [2006 (202) E.L.T. 392 (Ker.)], wherein the Honble High Court had considered DGFTs Circulars No. 16, dated 29 -9 -2003, No. 19 dated 11 -11 -2003 and No. 20, dated 23 -2 -2004 and had held that import of secondhand capital goods required a valid licence as clarified in the said circulars. The High Courts view was overruled by the Apex Court in the judgment produced today by the learned SDR [2009 (235) E.L.T. 385 (S.C.)]. The Honble Supreme Court held that any restriction to importation of secondhand capital goods could be placed only by an amendment in Policy by the Central Government and not by Policy Circulars issued by DGFT. The aforesaid Policy Circulars of the DGFT were held to be only clarificatory and not mandatory. Thus, we find that the appellant is benefited by the Honble Supreme Courts judgment.