Full Judgment
2. Appellants made import of an old and second hand photocopier machine. The price declared by the appellant as per invoice is not accepted by the Customs authority. The goods were examined by the Chartered Engineer of M/s. Moody International (India) Pvt. Ltd. As per the Chartered Engineer's certificate, the price of the goods is different from the declared by the appellants. The adjudicating authority rejected the price declared by the appellants as well as per the certificate issued by Chartered Engineer and determined the price by adopting the manufacturer value and applying the principle of depreciation and ordered the assessment of the goods. The adjudicating authority also confiscated the goods under Section 111(d) of the Customs Act, 1962 as the goods were not second hand capital goods and were imported in violation of Foreign Trade Policy.
3. The contention of the appellant is that the Tribunal in the case of Atul Commodities (P) Ltd. v. Commissioner of Customs, Cochin & Hyderabad, (Tri.-L.B.) 4. In respect of valuation, the contention of the appellant is that appellant declared the price as per the invoice of the supplier. The goods were re-examined by the Chartered Engineer and as per the certificate issued by the Chartered Engineer, the goods in question are obsolete and year of manufacture is not available and it is only on the basis of some information, the year of manufacturer was mentioned between 1993-1996. The contention is that the Commissioner (Appeals) adopted the manufacturer value but there is nothing mentioned in the impugned order from which source the manufactured value has been taken for determining the price of the goods imported by the appellant. The contention is that in these circumstances, the impugned order is not sustainable.
5. The contention of the Revenue is that there is a difference in the value declared by the appellant in the Bill of Entry and as per the Chartered Engineer certificate and the Chartered Engineer examined the goods at the request of the appellant. Now, the appellant cannot argue against the value determined by the Chartered Engineer.
6. We find in this case the goods were confiscated on the ground that these are not capital goods. Therefore, are imported in violation of the Foreign Trade Policy. This issue is now settled by the Larger Bench of the Tribunal in the case of Atul Commodities (P) Ltd. v.Commissioner of Customs, Cochin & Hyderabad (Supra). In this case the Tribunal held that photocopies are capital goods and as per the policy, the second hand capital goods are freely importable. In view of the above decision, the confiscation under Section 111(d) of Customs Act, 1962 is not sustainable, hence set aside.
7. In respect of the valuation of the goods, we find that the Commissioner had dis-regarded the value mentioned in the invoice as well as arrived at by the Chartered Engineer. The Commissioner had taken into consideration the manufacturer value and applied the method of depreciation. In the impugned, there is no mention of the manufacturer value or source of manufacturer value. In the impugned order, in para-10, it is only mentioned that since there was a conflict of opinion regarding the value in the Chartered Engineer certificate supplied by the supplier and goods examined by M/s. Moody International (India) Pvt. Ltd., therefore, only alternative to adopt the manufacturer value. But there is no mention at what price the manufacturer is supplying the goods. In absence of material particularly, regarding manufacturer value and method of depreciation adopted by the adjudicating authority, the value determined in the order is not sustainable and set aside. The impugned order is set aside and the appeals are allowed.