J.K. IMPEX Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE appellants had imported Photocopiers of various models and claimed clearance under Bill of Entry dated 1 1.3.05. As they claimed the machines to be capital goods, they did not produce specific import licence. But the department considered the machines as 'consumer goods' and, in the absence of import licence, took the view that the goods were liable to confiscation and the importer liable to penalty. This view has been upheld by the Commissioner of Customs in the impugned order. Accordingly the goods have been confiscated under Section 11(d) of the Customs Act read with Section 3(3) of the FT (D&R) Act with option for redemption on payment of fine of No. 3 lakhs under Section 125 of the Customs Act. A penalty of No. 1 lakh has been imposed on the importer under Section 112 of the Customs Act. In the present appeal filed by the importer, both confiscation (with redemption fine) and penalty are under challenge. However, in view of the judgment dated 7.4.06 passed by the Hon'ble High Court of Kerala in Customs Appeal No. 14 of 2005 [Commissioner of Customs, Cochin v, Mech and Tech], the challenge in the present appeal against the order of confiscation cannot survive. The Hon'ble High Court (Division Bench) has set aside the Tribunal's Larger Bench decision to the effect that second -hand photocopiers are capital goods and not consumer goods and hence there is no requirement of licence for import of such goods. The effect of the High Court's judgment is that the second -hand photocopiers imported by the appellants without licence is liable to confiscation.

(2.) LEARNED Counsel for the appellants, having conceded the above position, is now urging that the quanta of redemption line and penalty be reduced in the facts and circumstances of the case. He has, in this connection, relied on the Final Order Nos. 347 -352/05 - NB (A) [Vijay Traders and Ors. v. CC, Kolkata]. Learned S!)R reiterates the findings of the Commissioner and submits that the fine and penalty cannot be said to be excessive.

(3.) IT appears from the Final Order Nos. 347 -352/05 NB(A) that, in similar eases of imports of second -hand photocopiers without licence, redemption fine and penalty were reduced by the Tribunal. In respect of such machines valued at No. 26,62.409.78, imported by M/s. J.N. Enterprises, the redemption fine and penalty were reduced from No. 15,00,000/ - and No. 10,00,000/ - to No. 1,50,000/ - and No. 1,00,000/ -respeclively. In the present case, the value of the goods is No. 26,45,131/ - which is comparable to the value of the goods imported by M/s. J.N. Enterprises. Hence it is fell that the quanta of fine and penalty imposed by the lower authority, in this case, can be reduced by adopting the standard employed in Final Order Nos. 347 -352/05, in the absence of alternative standards, Accordingly the fine imposed on the appellant is reduced to No. 1.5 lakhs and the penalty imposed on the in is maintained as No. 1 lakh. The appeal is allowed in part.