DATA ENTERPRISES Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE issue involved in this appeal, filed by M/s. Data Enterprises, is whether the goods imported by them are classifiable as photo copying machines or as reconditioned components.

(2.) SHRI K.K. Anand, learned Advocate, submitted that the appellant are engaged, inter alia, in the trading of reconditioned components of photo copiers; that they had imported a consignment of reconditioned components of photo copiers and filed Bill of Entry No. 102458 dated 11 -10 -99; that the consignment consisted of 89 chasis mounted with some components and 1185 pieces of other components of the photo copying machines; that the Joint Commissioner, under Order dated 26 -11 -1999, held that 68 chasis were to be classified as photocopiers and ordered their confiscation with option to redeem the same on payment of fine and imposed penalty; that the Tribunal remanded the matter to the Adjudicating Authority vide Final Order No. 710 -11/2000 -A, dated 14 -7 -2000 for re -determination of the nature of goods after obtaining the expert opinion; that the Department obtained the opinion of Dr. P.C. Subramaniam, Assistant Professor, Department of Electronic Engg., Regional Engineering College, Calicut; that in view of the objections raised by the Appellant on the said report, the Assistant Commissioner formed an Expert Committee comprising of two Service Engineers who also submitted their report; that thereafter the Additional Commissioner, under Order dated 27 -7 -2001 confiscated the impugned goods on the ground that the reconditioned main frames were not components as defined in the Import Policy but were classifiable as photo copying machines by virtue of Rule 2(a) of the Interpretative Rules to Customs Tariff; that the Commissioner (Appeals), under the impugned order, has upheld the confiscation of 89 chasis though he has reduced the redemption fine and penalty.

(3.) THE learned Advocate, further, submitted that Dr. Subramaniam's opinion has no relevance to the main frames imported by them as the said opinion pertained to a number of consignments inspected by him on 17/18th May 2001; that as per Dr. Subramaniam's report, the full optics required for photocopier were contained in almost all units whereas Expert Committee found that all the optics therein were completely damaged; that the type of main frames imported by them do not require any Selinium drums whereas Dr. has opined that selinium drums were missing which shows that his opinion does not pertain to the impugned goods; that Dr. has also mentioned in his report that most of the populated circuit boards were non -existent in all the units; that besides this, the main frames were not fitted with many other components such as drum unit, toner unit, cleaning unit, Corona, front cover, top cover, side cover, flap, miscellaneous plastic parts, fans, top glass, press punch parts and hardware, fixing unit, waste toner container, delivery unit, trolly for PIC, M/s. etc.; that Dr. Subramaniam's view that missing parts which can be manufactured in India are not to be considered as important for the purpose of essential characters of photo copying machine is fallacious. He also referred to letter dated 13 -5 -2001 in which the Appellants had mentioned that minimum 5 PCBs such as main PCB, Power Supply PCB, high voltage transformer PCB, lamp regulated PCB and Panel PCB were required for each photo copier. The learned Advocate also mentioned that the Expert Committee has opined in its Opinion dated 28 -6 -2001 that almost all the main frames are rusty and dented consisting mainly of cannon different models and 2 or 3 pieces of Xerox; wiring intended for inter connecting the mother board to other PCBs were cut into pieces by rats; optics are completely damaged and the flames with the available parts could not perform as a machine. The learned Advocate has relied upon the decision in the case of H.C.L Ltd. v U.O.I., 1992 (59) EX.T. 507 (Cal.) wherein it has been held by the Calcutta High Court that entire photo copying machine was not imported as selininum drum was not imported. Reliance has also been placed on the decisions in Bhagwan Electro Photocopiers v. C.C. New Delhi -1999 (106) E.L.T. 66 (T), B.E. Office Automation Products v. C.C. Amritsar - 2000 (122) E.L.T. 908 (T) = 2001 (43) RLT 159 (T) and New Century Impex v. C.C., Nhava Sheva - 2002 (142) E.L.T. 701 (T) = 2002 (50) R.L.T. 760 (T) wherein the Appellants had imported 60% to 70% components of photocopying machine and procured locally 24 components for assembling them into a machine, the Tribunal has held the imported goods to be components and not photocopying machines. Finally he mentioned that the Tribunal in their own case Data Enterprises v. C.C. - 1999 (113) E.L.T. 876 (T) = 1999 (34) RLT 94 wherein the reconditioned mounted chasis imported by them constituted 90% the components of the Photo copier and even then the Tribunal held them to be components that in the present matter the components imported by them constitute less then 50%.