2013 (6) TMI 273 - HC - Customs

Import of secondhand digital multifunction print and copying machines as per the Bills of Entry - writ of Certiorarified Mandamus - penalty on each of the petitioners/importers under Section 112(a) of the Customs Act, 1962 imposed - Held that - In the present case, there is no conflict between the Foreign Trade Policy 2009-2014 and Hand Book of Procedures V.1 2009-2014. This is evident from the fact that only in the case of spares certain conditions have been imposed for import, though falling under the restricted category under the Foreign Trade Policy 2009-2014. However, insofar as the Digital Multifunction Print and Copying Machines are concerned, no such condition has been imposed in the Hand Book of Procedures V.1 2009-2014. A conjoint reading of Para 2.33 of Hand Book of Procedures V.1 2009-2014 and Para 2.17 of Foreign Trade Policy 2009-2014, which says that imports should be in accordance with the procedure prescribed, would only mean that the Hand Book of Procedures V.1 2009-2014, which prescribes the manner of import of secondhand capital goods has to be followed and if the procedure contemplated therein is followed, then the benefit of free import should be granted to the present crop of goods, as they are freely importable. Thus he reasoning and the findings of the respondent are untenable and contrary to the law laid down by this Court a it stems from a misreading of the Foreign Trade Policy 2009-2014. Therefore, para 12(a) of the order holding that secondhand Digital Multifunction Print and Copying Machines are restricted for import under Para 2.17 of the Foreign Trade Policy 2009-2014 is contrary to law and accordingly, is liable to be set aside. There is a clear distinction between machines and assemblies. The authority failed to take note of the same. In fact, on classification of export and import items, ITC(HS) is binding on the authorities. On inspection it is clarified that imported goods are complete machines and not electrical and electronic assemblies. Since already held that Part B of Schedule III does not apply to the goods in question, the finding in para 11.7 of the order that the goods imported are electrical and electronic assemblies as per Third Sub-entry of B1110 is incorrect and a misconceived finding There is no material before the respondent to come to the conclusion that the goods in question are hazardous wastes per se. If the goods imported are found to be hazardous wastes by any competent authority on inspection, then appropriate action can be taken. To declare certain goods imported as hazardous wastes per se based on the officer s interpretation of the Rules would be preposterous and untenable in law. No hesitation to hold that the respondent has not made out a case that the goods imported would fall under the provisions of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 or that it is a hazardous waste as per Rule 3(l)(iii) of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008. As a consequence, paragraphs 12(c) and 12(d) of the order cannot be justified. The order of confiscation of the goods under Section 111(d) of the Customs Act, 1962 read with Sections 3(2) and 11(1) of the Foreign Trade (Development and Regulation) Act, 1992 is bad. The finding with regard to prior permission from Ministry of Environment and Forest also does not apply in view of the finding that there is no material to substantiate the plea that the goods imported are hazardous waste. Admittedly, no show cause notice has been issued for confiscation or for imposition of penalty and therefore there is a statutory violation in the order confiscating the goods and imposing penalty. Hence, the procedure prescribed under Section 124 of the Customs Act, 1962 has not been followed and on that ground also the impugned order is liable to be set aside. The impugned order imposing penalty on each of the petitioners/importers under Section 112(a) of the Customs Act, 1962 is unsustainable in law.

Summary

Issues Involved:
1. Restriction on import of secondhand Digital Multifunction Print and Copying Machines.
2. Whether the imported goods are categorized as hazardous waste.
3. Confiscation of goods and imposition of penalty under the Customs Act.
4. Availability and bypassing of alternative remedy.

Detailed Analysis:

Restriction on Import of Impugned Goods:

The petitioners sought the issuance of a writ to quash the order restricting the import of secondhand Digital Multifunction Print and Copying Machines. The petitioners argued that under the Foreign Trade Policy (FTP) 2009-2014 and the Hand Book of Procedures (HBP) V.1 2009-2014, such goods were freely importable. The court referred to the provisions of the FTP and HBP, noting that while personal computers and laptops were restricted, other secondhand capital goods, including Digital Multifunction Print and Copying Machines, were freely importable under Para 2.33 of HBP V.1 2009-2014. The court emphasized that the FTP and HBP should be read together to give a purposive interpretation, and found no conflict between them. Consequently, the court held that the respondent's finding that the goods were restricted under Para 2.17 of the FTP was contrary to law and liable to be set aside.

Imported Goods Whether Hazardous Waste:

The respondent contended that the imported goods fell under the category of hazardous waste as per Rule 3(1)(iii) of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008, specifically under Basel No.B1110 of Part B of Schedule III. However, the court found this interpretation incorrect, noting that the imported goods were complete machines, not waste or assemblies. The court highlighted that the machines were certified to be in working condition with residual life by a Chartered Engineer, and there was no evidence to classify them as hazardous waste. The court concluded that the respondent's reliance on the Basel Convention and the Hazardous Wastes Rules was misplaced, and there was no material to substantiate the claim that the goods were hazardous waste. Therefore, paragraphs 12(c) and 12(d) of the respondent's order were unjustified and liable to be set aside.

Confiscation of Goods, Imposition of Penalty & the Provisions of the Customs Act:

The court noted that the confiscation of goods and imposition of penalties under Section 111(d) of the Customs Act, 1962, read with Sections 3(2) and 11(1) of the Foreign Trade (Development and Regulation) Act, 1992, were done without issuing a show cause notice as required under Section 124 of the Customs Act. The court emphasized that the statutory procedure for confiscation and penalty had not been followed, rendering the order arbitrary and contrary to law. The court also observed that the petitioners had not waived the requirement of a show cause notice. Consequently, the order of confiscation and imposition of penalties was set aside.

Alternative Remedy:

The respondent argued that the petitioners had bypassed the statutory appeal remedy under the Customs Act by filing writ petitions. However, the court rejected this plea, noting that the earlier order directing the authority to consider the petitioners' claim for release of goods was in terms of Section 47 of the Customs Act. The court held that when an authority acts contrary to statutory provisions or in an arbitrary manner, the aggrieved party is entitled to seek protection under Article 226 of the Constitution of India. The court found the impugned order to be arbitrary and unsustainable on its face, and therefore, the plea of alternative remedy was not applicable.

Conclusion:

The writ petitions were allowed, and the impugned order was set aside. The court directed the respondent to release the imported goods forthwith, with no costs imposed. The connected miscellaneous petitions were also closed.