2011 (10) TMI 356 - HC - Customs

Confiscation - Assessee imported Old Machines - Goods inspected by Chartered Engineer, Correct in quantity and description but some difference on account of value - Non release of subject good on account of e-waste - Held That - Consignment reached the port on 06.09.11 till that date no show cause notice issued thus it is not permissible to treat the imported goods as restricted goods. Department is running contrary to Section 17 which entitles importer to examine, assess and clear goods without undue delay. Section 18 enables provisional assessment pending production of documents in the present case, all the documents have been furnished that are necessary for processing and assessing the Bill of Entry and ordering the release of goods of the petitioners. Decided in favour of assessee.

Summary

Issues:
Petition seeking mandamus to release imported goods under Foreign Trade Policy without restriction, classification of goods as e-waste, requirement for import permits, lack of certification, compliance with previous court orders, delay in issuing show cause notice, statutory obligations of Customs authorities.

Analysis:

Issue 1: Mandamus to release imported goods
The petitioners sought a writ of mandamus to direct the respondents to release imported goods without imposing any restriction under the Foreign Trade Policy. The goods in question were declared as old and used Digital Multifunction Print and Copying Machines and Digital Wide Format Printing Machines. The petitioners argued that the goods were correctly declared, inspected by a Chartered Engineer, and deemed operational, thus should not be classified as e-waste. They referred to previous court orders directing release of similar goods under certain conditions.

Issue 2: Classification of goods as e-waste
The respondents contended that the imported goods were hazardous waste requiring import permits under the Hazardous Waste Rules. They argued that the goods fell under specific hazardous waste categories and needed certification from relevant authorities. However, the petitioners provided certificates from a Chartered Engineer stating that the machines were operational and not hazardous waste, challenging the classification by the respondents.

Issue 3: Lack of certification and inspection
The respondents raised concerns about the lack of certification from Pollution Control or Chartered Engineers to verify the nature of the imported goods. The petitioners countered by presenting certificates from a Chartered Engineer confirming the functionality and non-hazardous nature of the machines. The court noted the presence of inspection reports and certifications, indicating compliance with inspection requirements.

Issue 4: Compliance with previous court orders
The petitioners referred to past court orders directing release of similar goods under specified conditions, including payment of a percentage of the enhanced value and compliance with duty payments. They sought a similar direction in the current case, emphasizing the need for consistency in decisions regarding the release of imported goods.

Issue 5: Delay in issuing show cause notice
The court highlighted the statutory obligation of Customs authorities to examine, assess, and clear imported goods without undue delay. It noted that the respondents had not issued a formal show cause notice despite the goods reaching the port, which could not justify treating the goods as restricted without proper legal procedures. The court emphasized the importance of timely processing to avoid unnecessary charges for importers.

Conclusion:
Considering the evidence presented, including inspection reports, certificates, and past court orders, the court directed the respondents to release the imported goods under specified conditions. The court emphasized the need for adherence to statutory obligations and consistency in decision-making regarding the release of imported goods. The writ petitions were disposed of with the direction for release of goods and cooperation in adjudication proceedings.