N.K. ENTERPRISES AND SRI BALAJI Vs. CCE

JUDGEMENT

(1.) THERE are two applications in each appeal, one for waiver of predeposit and stay of recovery in respect of penalty and the other for early disposal of the appeal. After hearing both sides, we are of the view that the appeals can be finally disposed of at this stage. Accordingly, after dispensing with predeposit and allowing the applications for early disposal of appeals, we take up the appeals for final disposal.

(2.) WE have examined the records. It appears that the appellants imported second -hand photocopiers in July 2006 without import licence and claimed clearance for home consumption under OGL. This claim was based on a premise that the goods were 'capital goods' and hence did not require any import licence. The adjudicating authority found the machines to be 'consumer goods' and, accordingly, ordered confiscation thereof under Section 111(d) and (m) of the Customs Act, giving an option to the importers for redeeming the goods on payment of fine. In the case of M/s. N.K. Enterprises, learned Commissioner determined the fine to be Rs. 6 lakhs for redeeming the goods of value (determined by himself) of over Rs. 30 lakhs. He also imposed a penalty of Rs. 3.3 lakhs on the party under Section 112 of the Act. In respect of M/s. Sri Balaji Office Equipment, the fine determined by the Commissioner is Rs. 7 lakhs in respect of goods of value of over Rs. 20 lakhs Ld. Commissioner imposed on the party a penalty of Rs. 3.5 lakhs.

(3.) LEARNED Counsel for the appellants submits that the appellant's have not yet redeemed the goods and are awaiting the results of these appeals. It is also submitted that M/s. N.K. Enterprises and M/s. Sri Balaji Office Equipment have already incurred demurrages to the extent of about Rs. 5 lakhs and about Rs. 2 lakhs respectively over a period of four months. In fact, this is the ground stated in the applications for early disposal of the appeals. It is also submitted by learned Counsel that the imports were made on a bona fide belief that the goods would be treated as 'capital goods' by the Indian Customs authorities in view of the Andhra Pradesh High Court's judgment in appeal No. 52 of 2005 upholding the Tribunal's Larger Bench decision in the case of Atul Commodities (P) Ltd. , wherein it had been held that second -hand photocopying machines were to be treated as 'capital goods' rather than 'consumer goods'.