By TIOL News Service

NEW DELHI, APR 28, 2014 : THE short issue involved in the present appeals of the Revenue against the order passed by Commissioner (Appeals) is as to whether the Digital Multifunction Printing and copying Machines (Old and used), imported prior to 05.06.2012 are hit by Para 2.17 of the Foreign Trade Policy, which placed the same under the restricted category with effect from 05.06.2012. It is seen that prior to the said date, only photocopier were listed under the said Para 2.17 of the Foreign Trade Policy for the purposes of requirement of licence.

Member (J) Observed : the issue is no more res integra and stand settled by a recent decision of the Tribunal vide which the appeal filed by the Revenue was rejected. In the case of CCE , Delhi M/s. Best Mega International, final order No. 55993/2013 dated 21.03.2013 , the Tribunal took into account the Chennai Bench decision in the case of Unitech Enterprises, strongly relied upon by the revenue and held that inasmuch as the issue stands subsequently decided by the Hon'ble Madras High Court in two decisions, it is the decision of the High Court which are required to be followed. It is seen that the Hon'ble Madras High Court in the case of Anand Impex reported in 2012 (281) ELT-178 (Mad.) = 2012-TIOL-1105-HC-MAD-CUS as also in the case of Sai Graphic System Vs. Commissioner of Custom, Chennai reported in 2013 (289) ELT-423 (Mad.) has held that there was no restriction on import of old and used Digital Multifunction Printing and Photocopying Machine prior to 06.06.2012. Accordingly the Tribunal in the above referred case of CCE , Delhi M/s. Best Mega International, has taken note of the said to decision of the Hon'ble High Court as also Minutes of the Meeting of Technical Review Committee of Ministry of Environment and Forests held on 16.11.2011.

Member (T) differed and Observed : while import is basically governed by Customs law, applicability of other laws is looked into by virtue of provision of S.11 of the Customs Act 1962. Accordingly, it may be stated that what that is restricted or prohibited in terms of Section 11 of Customs Act 1962 that holds the field to deal the imported goods. Object of every notification is defined by the statute under which that notification is issued. Every statute having its own object unless otherwise specifically stated cannot be conceived to be either superseded or overrided by any other statute. Therefore hazardous waste rule serves the purpose of environment protection and the customs law being a fiscal statute operates in its own field in addition to the applicability of various other statutes as required by Section 11 of the Customs Act 1962. No other statute can be considered to make the Customs law redundant and otiose. Accordingly classification in all these appeals is to be made according to the spirit of Apex Court judgment in Atul's case and interpretation in Unitech case read with Tariff entries as well as Board's clarification. Consequently revenue's contention that old and used multifunctional copying and printing machines are covered under broader classification and DGFT's notification and thus restricted, is upheld and Revenue succeeds in all the appeals.

And so the matter goes to a Third Member with the following difference of opinion.

Whether the Digital Multifunction printing and photocopying machines imported prior to 6.6.2012 do not require a license for importation of the same as held by Member (Judicial) or the same require a license for importation as held by Member (Technical)?

(See 2014-TIOL-649-CESTAT-DEL)