ORDER
S.S. Sekhon, Member (T)
1. The appellants had imported Machinery under E.P.C.G. Scheme. The machines were despatched, in an old and used Marine Steel Container for which no additional price was charged. While the clearance of the machines is not in doubt, the container was confiscated and a redemption fine of Rs. 35,000/- was imposed along with a penalty of Rs. 10,000/- which was released on payment of fine of Rs. 15,000/- and Rs. 3,000/- respectively by the Commissioner (Appeals), who upheld the liability for confiscation of the old and used marine steel container under the provisions of para 29 of the Export Import Policy 1992-97 which stipulated that second hand goods except capital goods required an import licence. Duty was determined after valuing it as Rs. 75,000/- Hence this appeal.
2. After hearing both sides, and considering the issues, it is found that:
(a) the Bill of Entry declared three Palettes contained in an old and used Marine Steel Container. Palettes, themselves, are the form in which machinery is packed and thereafter stuffed into a Marine Container. Therefore, the plea of the appellant that the said Marine Steel Containers were packaging or packing material or as a container cannot be upheld. The Marine Container has been and is admittedly used for safe and secure sea voyage of the machinery in question from Germany to India. It is not in the nature of primary packing. The machinery is placed & packed in three Palettes as is evidenced from the invoices and the Bill of Entry filed. The machinery was sought to be cleared along with this old and used Marine Steel Container for home consumption. The Steel Marine Containers which are used for transportation of the goods and not packing the goods would require an import licence. No such licence was produced. Therefore, liability for confiscation of the same under Section 111 (d) of the Customs Act, 1962 is upheld.
(b) We have also considered the decision of Ballarpur Industries Ltd v. CC 1992 (60) ELT 472 (Tri) on Marine Containers Nothing contrary has been shown. Following the same, the container is leviable to duty separately and has to be assessed as a separate item of import. The reliance of the learned advocate for the appellant on the case of CC, Mumbai v. Ispat Profiles (India) Ltd 2001 (138) ELT 884 (Tri) wherein the Bench of this Tribunal held that, duty could not be charged on such old and used containers when sales indicate that the value was included in the value of plant/machinery and container being old and used was and not to be returned and import licence itself refers to import of machinery in old and used containers. In the present case, the learned advocate for the appellants fairly agrees that the E.P.C.G. machinery imports in their case did not permit & or cover old and used Marine Steel Container. In that view of the matter, we find that the decision relied upon by the learned advocate will not help the plea of the value of the container and its assessment to be not considered separately.
(c) We find that the lower authorities have arrived at the value after taking the value of new container and giving depreciation for the same and no material has been brought to challenge this valuation. We therefore find no reason to interfere with the value that is arrived at.
(d) The plea of reduction of redemption fine and penalty has been considered. It is found that the Commissioner (Appeals) has adequately reduced the fine and penalty. There is no reason for us to interfere with the same. This plea is also to be rejected.
3. In view of our finding, the appeal is dismissed.
(Pronounced in Court)