2021 (12) TMI 852 - AT - Customs

Import of old and used Maquet Servoi ventilator machine with standard hoses and accessories - hazardous goods or not - applicability of relaxation afforded by OM dated 10th June 2021 issued from F.no. 23/8/2021-HSMD by the Government of India in the Ministry of Environment, Forest and Climates Change - HELD THAT - The imports effected by the appellant-importer is a small consignment of five ventilators with a declared value of ₹ 9,49,430/- and duty implication of ₹ 47,472/-. Considering the size of the consignment and the circumstances in which the imports had been effected, it is not necessary for us to go into the issue of whether ventilators are to be considered as medical equipment within the meaning of the expression deployed in Hazardous and Other Wastes (Management, Handling and Trans-Boundary Movement) Rules, 2016. Suffice it to say that all old and used medical equipment had been temporarily relieved from the prohibition, otherwise existing, owing to the pandemic and urgency of deploying any available equipment and that the relaxation ordered on 10th June 2021 was available to all goods that were yet uncleared as on 8th June 2021. The impugned goods, shipped on 17th May 2021 and included in manifest dated 8th June 2021, would conform to the definition of imported goods which, merely because these had not been landed on 8th June 2021, does not take these out of the purview of goods lying uncleared at the port. That would require evidence of the conveyance having been beyond the territorial waters which has not been demonstrated by customs authorities. The relaxation in the office memorandum supra applies to the impugned goods. In the absence of any finding that the declared value did not represent the transaction value, the confiscation and imposition of penalty, as also the redetermination of value, is not valid in law - appeal allowed.

Summary

Issues:
Eligibility of goods for temporary exclusion from prohibition, Confiscation under Customs Act, 1962, Redetermination of value, Applicability of relaxation granted by the Government of India.

Eligibility of goods for temporary exclusion from prohibition:
The judgment revolves around the eligibility of goods, specifically 'old and used Maquet Servoi ventilator machine with standard hoses and accessories,' for temporary exclusion from prohibition until 8th June 2021. The importer argued that the goods fell within the relaxation provided by an office memorandum issued by the Government of India. The tribunal noted that the goods were a small consignment of ventilators with a declared value and duty implication. It was highlighted that all 'old and used medical equipment' had been temporarily relieved from prohibition due to the pandemic, and the relaxation ordered on 10th June 2021 applied to goods uncleared as of 8th June 2021. The tribunal found that the goods were covered by the temporary exclusion and were not imported to circumvent the prohibition.

Confiscation under Customs Act, 1962:
The goods were confiscated under section 111(d) of the Customs Act, 1962, as they were declared prohibited 'old and used medical equipment.' The goods were permitted for redemption on payment of a fine for re-export. Penalties were imposed on the importer and their customs broker. The assessable value of the goods was enhanced with a consequential short levy of duty. The tribunal examined the legality of the confiscation and penalties imposed, considering the circumstances of the import and the applicability of the relaxation granted by the Government of India.

Redetermination of value:
The original authority had re-determined the value of the goods, which was contested by the appellant. The tribunal noted that the re-determination to a higher value was not based on any provision of the Customs Valuation Rules. The absence of evidence that the declared value did not represent the transaction value was highlighted. The tribunal found the redetermination of value invalid in law, contributing to the setting aside of the impugned order.

Applicability of relaxation granted by the Government of India:
The tribunal analyzed the applicability of the relaxation granted by the Government of India, which was argued to be limited to goods uncleared at the ports as of 8th June 2021. The tribunal found that the goods in question, shipped on 17th May 2021 and included in a manifest dated 8th June 2021, fell within the definition of 'imported goods.' The tribunal concluded that the relaxation in the office memorandum applied to the impugned goods, leading to the setting aside of the impugned order and allowing the appeals of the importer and customs broker.