2004 (97) ECC 448 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(A)

Shri S.S. Kang, Member (J) and Shri C.N.B. Nair, Member (T)

Office Tec Industries

Versus

CC, Chennai

Appeals No. C/418-419/2003-NB(A)

[Arising out of Order-in-Original No. 972/2003 dated 1.9.2003 in respect of Appeal No. C/418/2003-NB(A) and Order-in-Original No. 971/2003-NB(A) dated 1.9.2003 passed by the Commissioner (Appeals), Customs, Chennai-I]

Final Order No. 762-763/2004-NB(A), dt. 7.7.2004, Certified on 28.7.2004

Enhancement of value (Customs)

Alleged import of photocopiers -- Value enhanced in the Order-in-Original. The declarations made in the Bill of Entry remained confirmed by expert opinion and there is no reason to take a view contrary to the declaration made. The impugned orders are clearly unsustainable on the issue of classification and valuation. The consignments be assessed as parts on the values declared i.e. the transaction value. The amounts of fine and penalty imposed in the present cases are not justified. The same is reduced in Appeal No. C/418/03 to Rs. 40,000 and 10,000 respectively and in Appeal No. C/419/03 to Rs. 50,000 and 15,000 respectively.

Appeals are disposed of

PRESENT :

Shri K.K. Anand, Adv. for the appellant.

Shri S.M. Tata, SDR for the respondent.

Per : C.N.B. Nair

Both the appeals relate to alleged import of photocopiers. The appellants declared the imported consignments as "old and used main frame assembly for photocopier". Individual parts and their prices were also separately given in the invoice filed alongwith the Bill of Entry. In the impugned order, the Commissioner held that the goods under import were actually photocopier in unfinished condition in terms of Rule 2(a) of General Rules for the Interpretation of Custom Tariff. Value for the purpose of assessment was also enhanced in line with the price of photocopiers.

2. The present appeals contend that there is no justification for treating the imported items as photocopiers. During the hearing of the case, the counsel for the appellants mentioned that, in terms of the order of the High Court, expert opinion had been obtained from M/s. Best Mulyankan Consultants Ltd., Mumbai and that opinion had confirmed that items were only parts. The Ld. Counsel took us through the expert opinion and pointed out that the expert opined that the consignment consisted of old and used parts of photocopiers and not complete photocopiers. The counsel has emphasised that the Commissioner has erroneously rejected the expert opinion and held against the appellant. He also pointed out that the Commissioner has relied on an earlier expert opinion given by M/s Superintendence Company of India. It is the Ld. Counsel's submission that the Commissioner could not have relied upon the report of M/s Superintendence Company of India, inasmuch as the Hon'ble High Court had specifically directed that the opinion be taken from M/s Mulyankan consultants Ltd., Mumbai.

3. We have perused the records and heard the Ld. SDR also. It is clear from the report of the expert viz. M/s Mulyankan Consultants Ltd. that the consignment could be treated only as old and used parts of photocopiers. The Commissioner has obviously erred in holding to the contrary by taking resort to Rule 2(a) of Interpretative Rules. That rule cannot have any application to a case like this, where old and used parts are imported. It is to be noted that the importer and his supplier were dealing with the consignment as parts and not as incomplete photocopier. It is also to be noted that expert in the present case had been appointed by the Hon'ble High Court and adjudication order has not brought out any reason for rejecting that opinion. In these facts and circumstances, we are of the view that the declarations made in the Bill of Entry remained confirmed by expert opinion and there is no reason to take a view contrary to the declaration made. The impugned orders are clearly unsustainable on the issue of classification and valuation. It is ordered that the consignments be assessed as parts on the values declared i.e. the transaction value. However, since the import of second hand and used items required licence, and the appellant does not produce such a licence, confiscation and imposition of penalty were justified. But we find that the amounts of fine and penalty imposed in the present cases are not justified. Accordingly, we reduce the fine and penalty in Appeal No. C/418/03 to Rs. 40,000 and 10,000 respectively and in Appeal No. C/419/03 to Rs. 50,000 and 15,000 respectively. The appeals are disposed of in the above terms.

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