VIJAY TRADERS Vs. COMMISSIONER OF CENTRAL EXCISE,

JUDGEMENT

(1.) ISSUE involved in these appeal is whether Photocopier machine parts, old and new are consumer goods and or classifiable as old/Photocopiers to call for confiscation liability under Section 111(d) of the Customs Act 1962 with and consequent penalty as arrived, or following the decision in the case of

(2.) FOLLOWING the Larger Bench decision, confiscation liability under Section 111(d) cannot be arrived; the penalties therefore cannot be upheld under Section 112 of the Customs Act 1962 as arrived.

(3.) THE Commissioner in purporting to come to the conclusion that the appellant No. 1 was the importer / owner of the subject goods has sought to rely upon the limited authorization given by them to the Clearing Agents on January 20, 2003 for following up the matter with the Shipping Company and to make arrangement for transferring and de -stuffing of the container containing the said imported goods in order to stop incurring of rent on the containers and demurrage charges which the said consignment was incurring, after having landed at the Kolkata Port. It was submitted that no reasonable person, on the basis of this authorization document and/or the contents thereof can come to a conclusion that the appellant had become the importer/ owner of the said goods, particularly in the light of the undisputed fact that at no point of time the foreign exporter had transferred the ownership of the said goods to the appellant. In fact even the related documents, including the original Bill of Lading, which were a must for appellant No. 1 to represent itself as an importer of the said goods and to file the Bill of Entry in respect thereof were not made available to the said appellant by the foreign exporter, it is also undisputed that no payment was made by the appellant No. 1 or on its behalf to the foreign exporter for the said goods and/or on account of the price of the said goods. In these premises, which are not controvested, neither under the Customs Act nor under the general law relating to sale and purchase of goods and transfer of ownership thereof, can the appellant No. 1 be found to be either an importer or the owner of the goods impugned here in.