2017 (3) TMI 495 - HC - Customs

Prohibited item - import of Drone - petitioner made true declaration regarding presence of Drone, however it is contended that the import of Drone is prohibited, and it is liable to be seized - Held that - Ext.P3 Notification dated 27.07.2016 issued by the Ministry of Commerce & Industry, Department of Commerce, Government of India, under which a restriction is created with respect to import of drones along with other similarly functional Aircraft systems. As discussed above, in order to import a drone, prior clearance of the Director General of Civil Aviation and import license from DGFT is required. The question with respect to the restrictions made was on account of the liability to pay the import duty etc. etc. on goods imported in the context of prohibited or non-prohibited . Here is a case where the restriction made is securing prior permission/licence from the two statutory authorities of the Government of India. Therefore, the restriction is a pre-condition to import goods. Petitioner has not challenged Ext.P3 Notification issued by the Government of India. The reason for which Ext.P3 Notification was issued by the Government of India is not discernible. Petitioner is not entitled for a direction to release the goods detained under Ext.P1 receipt, provisionally to the petitioner. But, dismissal of this writ petition will not stand in the way of considering Ext.P2 application submitted by the petitioner, if and when situation demands - petition dismissed - decided against petitioner.

Issues Involved:
1. Legality of the detention of the drone by customs authorities.
2. Applicability of Ext.P3 notification regarding the restriction on drone imports.
3. Petitioner's compliance with import regulations.
4. Provisional release of detained goods under Section 110A of the Customs Act.
5. Interpretation of "prohibited goods" under Section 2(33) of the Customs Act.
6. Relevance of prior permissions/licenses for importing restricted items.

Issue-wise Detailed Analysis:

1. Legality of the Detention of the Drone by Customs Authorities:
The petitioner, a Non-Resident Indian, brought a drone to India, declaring it for use in his photo studio. The drone was detained by customs authorities citing Ext.P3 notification, which categorized drones as "restricted" items requiring prior clearance from the Directorate General of Civil Aviation (DGCA) and an import license from the Directorate General of Foreign Trade (DGFT). The court found that the detention was lawful as the petitioner did not secure the necessary permissions, categorizing the drone as "prohibited goods" under Section 2(33) of the Customs Act.

2. Applicability of Ext.P3 Notification Regarding the Restriction on Drone Imports:
Ext.P3 notification dated 27.07.2016, issued by the Ministry of Commerce & Industry, restricted the import of drones, requiring prior clearance from DGCA and an import license from DGFT. The petitioner argued that the restriction does not equate to a prohibition under the Customs Act. However, the court held that the restriction is a pre-condition for import, and failure to comply renders the goods prohibited.

3. Petitioner's Compliance with Import Regulations:
The petitioner did not challenge Ext.P3 notification and failed to secure the required permissions from DGCA and DGFT. The court emphasized that the restriction was a pre-condition for import, and non-compliance justified the detention of the drone. The court noted that the petitioner’s ignorance of the requirement was not a valid excuse as the information was publicly available.

4. Provisional Release of Detained Goods Under Section 110A of the Customs Act:
The petitioner sought provisional release of the drone under Section 110A of the Customs Act, which allows for the provisional release of seized goods pending adjudication. The court, however, held that provisional release would undermine the restriction's value and importance, as the restriction is not a casual affair. The court emphasized that the adjudicating authority has the discretion under Section 125 of the Customs Act to release goods in lieu of confiscation, but this discretion is bound by the pre-condition of securing necessary permissions.

5. Interpretation of "Prohibited Goods" Under Section 2(33) of the Customs Act:
The court clarified that "prohibited goods" under Section 2(33) include items whose import is subject to conditions that have not been met. Since the petitioner did not obtain the required permissions, the drone was classified as prohibited. The court also referred to Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, which aligns with the Customs Act in deeming restricted items as prohibited if conditions are unmet.

6. Relevance of Prior Permissions/Licenses for Importing Restricted Items:
The court underscored the importance of obtaining prior permissions/licenses for importing restricted items. The requirement allows statutory authorities to evaluate the import's intention and ensure compliance with regulations. The court noted that the petitioner’s failure to secure these permissions justified the drone's detention and dismissed the writ petition, though it left open the possibility of considering the petitioner's application if conditions change.

Conclusion:
The writ petition was dismissed, with the court affirming the legality of the drone's detention due to non-compliance with Ext.P3 notification requirements. The court highlighted the necessity of obtaining prior permissions for importing restricted items and upheld the statutory framework governing such imports.

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