ORDER
S.L. Peeran, Member (J)
1. This appeal arises from OIA No. 433/03-Cus., dated 16-12-2003 passed by Commissioner of Customs (Appeals) Bangalore upholding the order of confiscation and imposition of penalty in respect of second hand medical equipment imported by the appellant, an STP unit, on a temporary basis for the purpose of testing and valuation of software development. The Additional Commissioner has noted that in terms of para 6.3 of the Import-Export Policy, an STP unit requires a separate licence and as the licence has not been produced, the goods were confiscated and released on payment of fine and penalty. The Commissioner has apart from the grounds taken by Additional Commissioner has proceeded to observe that the item is in the nature proto-type rather than capital goods and not covered by para 6.3 of the EXIM Policy. This is a new case and ground made out which was not made out by the Additional Commissioner and the assessing officer in the BE. On a careful consideration, this ground is negatived.
2. I have heard the counsel and DR on the aspect pertaining to the item requiring licence. In terms of para 6.3, the Additional Commissioner in the OIO has held that item being capital goods and a second hand used one, is a restricted item. He has not perused the relevant policy of 2002-2007 which clearly permits in terms of para 6.3 for import of second hand capital goods, without payment of duty. Para 6.2(b) also lays down that an STP unit may import without payment of duty all types of goods including capital goods as defined in the policy. Obviously both the authorities have failed to go through the relevant paras of the ITC Exim Policy resulting in the confiscation of the impugned goods; which does not require a licence. The goods cannot be confiscated and as a result fine and penalty is not leviable. The appeal is allowed with consequential relief.
(Pronounced and dictated in Open Court)