PRABHAT PUBLICITY Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) A Bill of Entry No 560 dt. 4.3.04 was filed seeking for clearing a printing Machine manufactured in 1995 on a declared CIF value of Rs. 19.96 lakhs.

(2.) THE adjudicator has held the Charted Engineers Certificate to be not reliable in the basis raised in the notice and the reason that 5 colour machine was declared, on BE while subsequently the importers claimed the same to be a 4 colour machine as well as explanation offered en shipment mishaps were not acceptable as they were not proved by evidence. The findings of the adjudicator are not acceptable as it is settled practice of law that unless the genuineness of Chartered Engineer's Certificate is challenged the valuation of second hand machinery is done on the basis of overseas Chartered Engineer's Certificate. The Board's Circular does not stipulate any condition that for applying the depreciation method, manufacture invoice or catalogue is required. The assessment is resorted to on the basis of information furnished in the Chartered Engineer's Certificate. In cur case Chartered Engineer's Certificate was in order and containing all the relevant informations such as original price in the year of manufacture, current price and make, model etc. The department could have applied depreciation method to arrive at the correct assessable value. And these findings cannot be accepted.

(3.) THE question of liability to confiscation arrived under Section 111(d) of Customs Act 1944 on the ground of the imports being of second hand capital goods, due to para 9.12 of Exim Policy 2002 -2007 and being restricted under para 2.17 of the Exim Policy and printing machinery is not permissible capital goods as per list under para 2.17 of the Exim Policy are issues which the importer before us is contesting that the order is not speaking and that the Commissioner was to follow the opinion given by Export Promotion Council and also that para 2.33 particular import of second hand capital goods freely and is non specific. The para 2.32 cannot be a ground to upset the Commissioner following. The order is giving detailed reasons, merely because it does not comments on Policy Circular No. 20 (2004 -2005) dated 23.02.05 and 1.1.03 and 29.9.03 and notification 31/05 dated 19.10.05 pertaining and import of second hand laptop computer, photocopier etc. as capital goods will not render the order non speaking as urged by the importer these DGFT clarifications are admittedly not for the machine under import. Printing machines are not listed as capital goods is para 2.17 of the Policy is not contested. We find therefore no reasons to consider the import of Capital Goods and to rely on Export Promotion Council Opinions. The confiscation is to be upheld. The quantum of fine as imposed is required to be reduced is a plea which is consider to be adequate at Rs. 10 Lakhs keeping in view the facts of the imports and the demurrage.