COMMISSIONER OF CUSTOMS, VISAKHAPATNAM Vs. SOORAJ GRAPHICS

JUDGEMENT

(1.) REVENUE has filed this appeal against Order -in -Appeal 22/2004 -CH, dated 11 -8 -2004 passed by the Commissioner of Customs and Central Excise (Appeals),Visakhapatnam.

(2.) THE respondents M/s. Sooraj Graphics imported second -hand photocopy machines on 26 -2 -2004. The lower authority enhanced the value to Rs. 19,23,871/ - and held that the goods are liable for confiscation under Section 112 (d) of Customs Act, 1962 read with Rules 3(2) and 3(3) of the Foreign Trade (Development and Regulation) Act, 1992 with an option to redeem the goods on payment of redemption fine of Rs. 20 lakhs. A penalty of Rs. 5 lakhs was also imposed under Section 112 of Customs Act. The respondents challenged the order of the lower authority before the Commissioner (A). The Commissioner (A) gave a finding that the used photocopiers imported as second -hand capital goods are covered under Para 2.33 of the EXIM Policy for 2003 -2007 as all the machines are less than 10 years old. Relying on the decision of the CESTAT in the case of M/s. BE Office Automation Pvt. Ltd and Anr. v. CCE, Mumbai - 2004 (171) E.L.T. 460 (Tribunal) = 2004 (63) RLT (CESTAT - Del.), she held that the second -hand photocopiers are capital goods and in terms of the Policy, there is no need for any licence with regard to valuation also relying on various case laws, she held that the transaction value declared by appellants should be accepted for the purpose of assessment. The revenue is aggrieved over the impugned order of the Commissioner (A) on the following grounds.

(3.) THE learned JDR who appeared for the revenue reiterated the grounds of appeal. Further, the learned JDR brought to our notice the decision of the Honble Kerala High Court in Customs Appeal No. 11 of 2005, dated 7 -4 -2006, which has set aside the order of the Larger Bench of CESTAT in the case of CC, Cochin v. M/s. Atul Commodities Pvt. Ltd. as reported in 2005 (184) E.L.T. 135 (Tri. - LB). With regard to the valuation, he relied on the following decisions :