ORDER
J.H. Joglekar, Member (T)
1. The appellants in this case imported certain machinery which on an examination was found to be old and used. The concerned documents namely the invoice, packing list, bill of lading etc. did not describe this condition of the goods. The goods were claimed to be free of duty in terms of Notification 13/81-Cus. since the importers were a 100% EOU. The capital goods list attested by the Development Commissioner also did not show the second hand condition of the goods. The department also noticed that the Development Commissioner’ s attestation was subsequent to the filing of the bill of entry which was subsequent to importation. The Commissioner accepted that under the Policy the second hand goods could be imported by the actual users as well as by the 100% EOUs. He however held that the certificate not having been issued in regard to second hand goods, the certificate did not cover the goods. He ordered confiscation of the goods for mis-declaration under Section 111(m) of the Customs Act, permitted redemption on payment of fine of Rs. 1,50,000/- and imposed penalty of Rs. 1,00,000/- but permitted the clearance without payment of duty under the relevant notification. Hence the present appeal.
2. I have heard Shri S.N. Kantawala, Advocate for the appellants and Shri K.M. Patwari for the Revenue.
3. In none of these documents, the real condition of the goods was shown by the importers. However, the EXIM Policy for the material period permitted importation of second hand goods both by actual users and by 100% EOUs. Therefore, even if strictly speaking the importers had failed to declare the actual condition of the machinery, it could not be termed as mis-declaration with intent to evade duty. The Commissioner in his order initially says that the certification by the Development Commissioner did not cover the goods but then he himself proceeded to grant their release without payment of duty under the relevant notification. This action of his shows that he had condoned the lapse of importers. Therefore on the same ground his action of rendering the goods to confiscation and imposition of penalty would not survive.
4. The appeal is allowed with consequential relief.