2012 (3) TMI 310 - HC - Customs

Clearance of import goods - 104 units of old and used Digital Multifunction Printing and Copying Machines and 10 units of old and used photocopying machines - circular no.42/2001 issued by CBEC, New Delhi, providing for speedy clearance of goods imported - Held that - while the authorities insisted for proper documentation to clear the consignment, a statement was made by the petitioner before the authorities concerned stating that he was unaware of the import consignment and documents and it is a settled legal position that once a statement is made under Section 108 the petitioner s claim for assessment or provisional assessment cannot be considered - thus the petitioner as a matter of right, cannot claim release of the goods as long as the statement made by him is still in force - mere production of Bill of Entry, Invoice of the goods, packing list and Bill of Lading, will not give any right over the property - the burden is on the petitioner to prove his ownership - Writ Petition stands disposed of

Issues Involved:

1. Provisional assessment and clearance of imported goods without a licence.
2. Ownership and importer's status under Section 2(26) of the Customs Act, 1962.
3. Validity of the statement made under Section 108 of the Customs Act, 1962.
4. Compliance with the Foreign Trade Policy and Customs regulations.
5. Delay in assessment and clearance of goods by the Customs authorities.

Issue-wise Detailed Analysis:

1. Provisional Assessment and Clearance of Imported Goods Without a Licence:
The petitioner sought a direction for provisional assessment and clearance of 104 units of old and used secondhand Digital Multifunction Print and Copying Machines and 10 units of old and used secondhand photocopying machines without insisting on a licence, upon payment of applicable customs duties. The petitioner argued that the goods were not prohibited and cited Circular No.42/2001-Cus dated 31.07.2001, which requires speedy clearance of imported goods to avoid demurrage and detention charges. The respondents, however, contended that the goods were restricted and required a valid import licence, and the petitioner had not provided sufficient documentation to prove the legality of the import.

2. Ownership and Importer's Status Under Section 2(26) of the Customs Act, 1962:
The petitioner claimed to be the importer as defined under Section 2(26) of the Customs Act, which includes any owner or any person holding himself out to be the importer. The petitioner provided documents such as the bill of entry, invoice, packing list, and bill of lading to establish ownership. However, the respondents argued that the petitioner had denied ownership in a statement made under Section 108 of the Customs Act, and thus, could not be considered the importer. The court noted that the petitioner's statement of disowning the consignment was still in force and had not been retracted.

3. Validity of the Statement Made Under Section 108 of the Customs Act, 1962:
The petitioner had given a statement under Section 108 of the Customs Act, stating that he was unaware of the import consignment and had no connection with it except for providing the Importer Exporter Code (IEC). The court held that unless this statement was retracted or canceled, the petitioner's claim for assessment or provisional assessment could not be considered. The court emphasized the legal position that a statement made under Section 108 is valid in prosecution unless retracted.

4. Compliance with the Foreign Trade Policy and Customs Regulations:
The petitioner argued that the import of secondhand digital multifunction print and copying machines was permissible under the Foreign Trade Policy and cited various judgments supporting the free importability of such goods. The respondents, however, maintained that the goods were restricted and required a valid import licence. The court referred to previous judgments and the classification of goods under the Customs Tariff Act, noting that the petitioner needed to prove compliance with the relevant regulations and policies.

5. Delay in Assessment and Clearance of Goods by the Customs Authorities:
The petitioner contended that the delay in assessment and clearance of the goods was arbitrary and caused undue financial hardship, citing the circular requiring speedy clearance. The respondents attributed the delay to the need for further investigation and verification of the importer's claim and documentation. The court acknowledged the delay but emphasized the importance of establishing ownership and compliance with legal requirements before clearance.

Conclusion:
The court concluded that the petitioner could not claim the release of the goods as a matter of right as long as the statement made under Section 108 was in force. The petitioner was directed to retract the statement and prove ownership and compliance with import regulations before the authorities. The court disposed of the writ petition with these observations and directions, emphasizing the need for the petitioner to establish his right as an importer in accordance with the law.

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