2012 (8) TMI 81 - HC - Customs

Import of explosive - Inspection and Certification agency - General Procedure for Licensing of Restricted Goods - petitioner had issued certificate/form of declaration/undertaking in respect of consignment - Declaration/undertaking that consignment does not contain any type of arms, ammunition, mines shells cartridges, or any other explosive material in any form, either used or otherwise Held that - Examination of the imported goods by the customs officers revealed that the same contained Eight Cylindrical shaped, military green colour objects having markings as Rocket 2.75 war-head with motor MK-66 MOD 4 Ammunition, incendiary UM - Conditions stipulated in paragraph 2.32.1 read with the aforesaid clause relating to certification were not satisfied - writ petition dismissed

Summary

Issues Involved:
1. Validity of Alert Circular No.01/2012-JNCH dated 16.01.2012.
2. Validity of the order dated 5th March, 2012 by Commissioner of Customs (Import), Nhava Sheva.
3. Compliance with DGFT guidelines and pre-shipment inspection certification requirements.
4. Distinction between "casing" and "shell" in the context of import regulations.

Detailed Analysis:

1. Validity of Alert Circular No.01/2012-JNCH dated 16.01.2012:
The petitioner, M/s Worldwide Logistics Survey and Inspection Group and Affiliates, challenged the Alert Circular dated 16.01.2012, which was issued after the examination of an imported consignment. The circular stated that the petitioner had issued a pre-shipment inspection certificate declaring the consignment free of arms, ammunition, and explosive materials. However, upon inspection, the consignment was found to contain cylindrical military objects marked as "Rocket 2.75 war-head with motor MK-66 MOD 4 Ammunition, incendiary." The circular alerted port authorities about possible mis-declaration of goods by the petitioner. The court noted that the circular was an alert for careful examination and did not mandate rejection of the petitioner's certificates. The court referenced a prior order (W.P No.441/2011) which clarified that such circulars are not stigmatic or indicative of blacklisting.

2. Validity of the order dated 5th March, 2012 by Commissioner of Customs (Import), Nhava Sheva:
The order dated 5th March, 2012, was issued after considering the findings from the Atomic Energy Regulatory Board and the Western Naval Command, which confirmed that no explosives were found in the rocket cases. However, the Commissioner of Customs rejected the petitioner's contention that the consignment contained "cases" and not "shells," thus not violating the DGFT guidelines. The court upheld this order, emphasizing that the import of any form of metallic waste containing hazardous or explosive materials, including shells, is prohibited under paragraph 2.32.1 of the DGFT guidelines. The court found that the Commissioner of Customs correctly interpreted the guidelines and that the order did not exceed the scope of the initial alert circular.

3. Compliance with DGFT guidelines and pre-shipment inspection certification requirements:
The court examined the DGFT guidelines, specifically paragraph 2.32.1, which prohibits the import of metallic waste containing hazardous, toxic, or explosive materials. The guidelines require a pre-shipment inspection certificate confirming that the consignment does not contain such materials. The court found that the petitioner's certification was not in compliance with these requirements, as the consignment contained rocket cases, which are considered hazardous. The court highlighted the responsibility of the inspection certification agency to ensure that consignments do not contain prohibited materials.

4. Distinction between "casing" and "shell" in the context of import regulations:
The petitioner argued that the consignment contained "cases" and not "shells" of rockets, and thus did not violate the DGFT guidelines. The court rejected this argument, stating that the terms "casing" and "shell" are synonymous in the context of the guidelines. The court referred to the Oxford Dictionary definitions, which describe both terms as protective coverings for explosives. The court emphasized that the import of any material that was part of an explosive device, whether used or otherwise, is prohibited. The court concluded that a liberal interpretation allowing such imports would be counterproductive and hazardous.

Conclusion:
The court dismissed the writ petition, upholding the validity of the Alert Circular dated 16.01.2012 and the order dated 5th March, 2012. The court affirmed that the petitioner's pre-shipment inspection certification did not comply with the DGFT guidelines, and the distinction between "casing" and "shell" was not applicable in this context. The court emphasized the importance of strict adherence to import regulations to prevent the entry of hazardous materials into the country.