2005 (98) ECC 333 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(A)

Hon'ble Justice K.K. Usha, President and C.N.B. Nair, Member (T)

BE Office Automation & Bhagwan Electro Photocopiers

Versus

CC, Mumbai

Appeals No. 220, 222 to 225/03-NB(A)

[Arising out of Order-in-Appeal No. 159 to 167/2003-MCH dated 31.3.03 passed by the Commissioner of Customs (Appeals), Mumbai]

Final Order No. 667-71/04-NB(A), dated 8.6.2004, Certified on 29.6.2004

Import Control

Photocopier main frames -- Main frame which account for only 55 to 60% of the part of a photo copier, cannot be treated as photo copier itself and provisions of Rule 2(A) of Interpretative Rules cannot be invoked for treating a main frame as photo copier.

[Para 3]

Valuation (Customs)

Transaction value -- Photocopier main frames -- Main frame which account for only 55 to 60% of the part of a photo copier, cannot be treated as photo copier itself and provisions of Rule 2(A) of Interpretative Rules have no application to such a case -- Rejection of transaction value for assessment has been made in contravention of the Customs Valuation Rules -- Duty demand made on such a basis cannot be sustained -- Lower authorities are directed to re-assess the goods as parts based on their declared value. Consequential refund of duty shall be allowed if the appellants are able to show that the provisions relating to unjust enrichment are satisfied -- Fines & Penalties be returned.

[Para 4]

Appeals allowed

PRESENT :

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

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

Case Cited :

Be-Office Automation v. CCE, 2001 (43) RLT 159................................................ [Para 3]

Per : C.N.B. Nair

These five appeals, three by Be-Office Automation and two by Bhagwan Electro Photocopier, relates to proceedings against the import of photocopier main frames by the appellants. Under the impugned order, the goods were proceeded against under three counts: one relating to import control and the other two relating to classification and valuation under the Customs Act. With regard to import control, the objection raised was that the item is a sub-assembly and not component, the point being that while components are eligible for import under the OGL, sub-assembly required license. With regard to classification, the lower authorities held that the main frame is required to be treated as a photocopier itself in terms of Rule 2(A) of Rules for the Interpretation of Tariff Schedule. On the question of valuation, the impugned orders held that the declared value is required to be enhanced and goods assessed on the basis of enhanced value.

2. Today when the cases came up for hearing, the learned Counsel has submitted that all these issues remain settled in favour of the assessee in terms of this Tribunal's orders. As regards the import control, the learned Counsel has referred us to para 6 of the decision of the Larger Bench under Misc. Order No. 113/04-NB(A) dated 26.4.04 in this very appeal wherein the tribunal note that position on Import Control as under:-

"In view of the above, we do not see it is required to decide the issue raised by way of a reference in the facts of this case. Suffice it to say that even if main frame of photo copies is a sub-assembly, as contended by the Revenue, since the policy is silent, on its import being restricted under a licence, the view taken by the Commissioner on this issue will not be sustainable. We, therefore, return the case for consideration by the Regular Bench on merits on the different contentions raised in the appeals."

3. On the question classification, the learned Counsel has referred us to the decision of a Division Bench of this Tribunal in the case of one of the present appellants namely Be-Office Automation v. CCE, 2001 (43) RLT 159 wherein the Tribunal noted that the main frame accounts for only 55% to 60% of a photo copier and therefore, Rule 2(a) of the Interpretative Rules cannot be invoked for treating a main frame as photo copier. On the question of valuation, the submission of the learned Counsel is that the orders of the lower authorities state that the imports at higher value of the same goods are being observed. However, no particulars of such imports have been mentioned by way of bill of entry, invoice etc. The learned Counsel therefore, has submitted that in the absence of any particulars, the lower authorities were in error in rejecting the transaction value.

4. We have perused the records and heard the learned SDR also. We find merit in the submissions of the appellants. The dispute about Import Control remains settled in favour of the appellants by the decision of the Larger Bench. Similarly, it is settled that a main frame which account for only 55 to 60% of the part of a photo copier, cannot be treated as photo copier itself and that the provisions of Rule 2(A) have no application to such a case. A perusal of the records makes it clear that the valuation of the goods have also been done without regard to any specific particulars. The adjudication order states as under on the issue of valuation:_

"In the present case, there is no allegation mis-declaration of value and enhancement in value is only for assessment of duty based on other contemporaneous imports."

It is clear from the above that the lower authorities have no specific reasons to reject the transaction value. In fact, the order specifically notes that there is no allegation of mis-declaration of value. In the circumstances, rejection of transaction value for assessment has been made in contravention of the Customs Valuation Rules. A duty demand made on such a basis cannot be sustained.

5. In view of what has been stated above, the appeals are allowed on all accounts. The lower authorities are directed to re-assess the goods as parts based on their declared value. Consequential refund of duty shall be allowed, if the appellants are able to show that the provisions relating to unjust enrichment are satisfied. It is also directed that the fines and penalties paid by the appellants shall be returned to them immediately.

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