Vasa Seshagiri Rao ORDER
Sulekha Beevi C.S., Member (J)
1. Brief facts of the case are that the appellant filed Bill of Entry dt. 12.02.2014 for clearance of 14 sets of Plastic Injection Moulds imported from M/s. Amer Sonic International, China vide invoice dt. 21.01.2014 by declaring the value as US$ 94900 CIF (AV Rs. 60,33,695/-) against EPCG authorization No. 3230019994 dated 07.02.2014 at NIL rate of duty under Notification No. 22/2013 : MANU/CUST/0035/2013 dated 18.04.2013. The Bill of Entry was assessed on 2nd check basis on 12.02.2014. During the examination, it was found that the goods are old and used and was sent to the Assessment Group on 15.02.2014.
2. Appellant vide letter dt. 02.02.2014, enclosed a clarification received from the foreign supplier which stated that moulds are not old and only trials have been conducted on these moulds. It was stated by the supplier that the moulds are new and meant for the importer (appellant).
3. In view of the above, the consignments were examined by a Chartered Engineer who in his report stated that the items are old and used. It was also stated in the report that the goods are two to three years old, but found to be not rapidly used and not reconditioned.
4. As per para 5.1 (e) of the Foreign Trade Policy "second hand capital goods shall not be permitted to be imported under EPCG Scheme".
5. The appellant vide letter dt. 10.03.2014 requested for adjudication of the matter waiving the issuance of the show cause notice and personal hearing. Subsequently, the original authority passed the order dt. 02.04.2014 by which the benefit of Notification No. 22/2013 : MANU/CUST/0035/2013 dt. 18.4.2013 was denied and ordered for clearance of the goods on payment of appropriate duty. The value of the goods was enhanced to Rs. 79,01,295/- and penalty of Rs. 3,50,000/- under Section 112 (a) of the Customs Act, 1962 was imposed. A Redemption fine of Rs. 7,90,000/- was imposed under Section 125 of the Customs Act, 1962. Aggrieved by such order, the appellant preferred an appeal before the Commissioner (Appeals) who vide order impugned herein upheld the same. Hence this appeal.
6. The Ld. Counsel Shri J. Shankarraman appeared and argued for the appellant.
6.1. In the present case the appellant placed a purchase order No.CG/2009 dated 15.6.2012 on M/s. Amer Sonic International Ltd., Hongkong, China for Supply of 14 moulds with drawing and specification for USD 94,900/-. On inspection of the said moulds it was felt that it required lot of corrections and therefore, it took longer time to correct the moulds. Subsequently, the appellant was not in a hurry to import the same immediately as the market conditions for their finished product was not very conducive. In view of the above there was a delay in importing it and imported only on 12.02.2014. These moulds are exclusively made for use in the manufacture of finished goods of the appellant. The appellant had given specific drawing and dimension to the supplier. Further the name 'SALZER' is etched on the mould and it is incorrect to say that it is a second hand capital goods. The appellant prayed before the Commissioner (Appeals) for examination of the same before passing an order. Since the moulds are unique and are made exclusively for SALZER, the impugned orders by the adjudicating authority and Commissioner (Appeals) in not permitting the same to be cleared against EPCG in terms of paragraph 5.1(e) of the Foreign Trade Policy and denying exemption under Notification No. 22/2013 : MANU/CUST/0035/2013 dated 18.4.2013 is incorrect.
6.2. Though the moulds were manufactured in 2012 according to the specification of the appellant, yet the same cannot be treated as second hand moulds as ther........