IN THE SUPREME COURT OF INDIA
S.H. Kapadia, J.
Civil Appeal No. 2999 of 2007:
1. This civil appeal is directed against the judgment and order dated 7.4.2006 in Customs Appeal No. 15/05 delivered by the Division Bench of Kerala High Court by which the Department's appeal came to be allowed and the judgment of the Tribunal dated 12.7.2005, following the decision of its Larger Bench in the case of Atul Commodities Pvt. Ltd. v. CC, came to be set aside.
2. The issue involved in this civil appeal is - Whether, during the period in question, Photocopying Machines (Photocopiers) were "freely importable" or whether its import required a licence/permission/certificate.
3. The facts lie within a very narrow compass. 4. In exercise of the powers conferred under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, the Central Government notified Foreign Trade Policy ("FTP" for short) for the period 2004-09 incorporating the Exim Policy for the period 2002-07 as modified. The Policy was announced on 31.8.2004. It came into force with effect from 1.9.2004. It remains in force up to 31.3.2009, unless otherwise specified.
5. The appellant imported in January, 2005 Photocopying Machines under the category "general imports".
6. On 25.2.2005, the Dy.CoC (Import) issued a show cause notice under Section 124 of the Customs Act alleging that the Used Photocopying Machines were restricted items for import under para 2.17 of the current FTP 2004-09 read with circular No. 20 dated 23.2.2005 issued by DGFT. In the show cause notice, it was thus alleged that goods have been imported without a valid import licence and consequently, they were liable to be confiscated under Section 111(d) of the Customs Act, 1962 read with para 2.17 of the FTP (2004-09).
7. In its reply dated 3.3.2005, appellant submitted inter alia that photocopying machine (photocopier) is an item of capital goods.
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