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TMI Blog2009 (1) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... ur generators of the power capacity suited to connected load to the machines which are of U.S.A. make and are as per U.S. Electrical Standards, which require power supply of 60 Hz. 3. The Customs at Nhava Sheva, where the consignment had arrived, permitted clearance of micro tunneling control machines and construction equipments. However, the four generators were not allowed clearance on the ground that import of the same is restricted in terms of para 2.17 of the Foreign Trade Policy 2004-09 read with para 2.33 of the Handbook of Procedures and import thereof requires a specific licence. Since the importers do not have specific licence, for these generators, therefore, there is violation of Section 111(d) of the Customs Act, 1962. That i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms at Nhava Sheva Port. Ld. Advocate also submitted that after the receipt of the licence, the Appellants approached the Commissioner of Customs, Nhava Sheva vide their letter dtd. 19-8-2008 requesting to allow the clearance of these 4 generators under the said specific licence. That in response to their letter, the Assistant Commissioner of Customs, JNCH, vide his letter dtd. 26-8-2008 informed the Appellants that since an order has been issued, therefore, an Appeal may be filed before the Hon ble CESTAT against the said order of the Commissioner. That the Assistant Commissioner has also mentioned about para 2.12.2 of the Handbook of Procedures 2004-09 and also para 9.11A of the Handbook of Procedures 2004-09 and that the date of shipment/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the said licence on payment of appropriate duty. 9. Ld. DR forcefully defending the order of the Commissioner stated that the confiscation of the goods is legal and proper. He submitted that para 2.12.2 of the Handbook of Procedures r/w para 9.11A of the Handbook of Procedures is relevant as the same are with reference to the date of shipment/despatch of the goods and as the goods are lying at the Indian Port therefore, the licence being produced now by the Appellants is not valid for the clearance of the impugned goods. Ld. DR also contended that the import of the Diesel generators are subject to the provisions of the Environment (Protection) Rules, 1986 and noise norms and on that ground also the licence so issued by the DGFT is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GFT and not the Customs authorities. 11. Ld. Advocate further submitted that as DGFT has issued a specific licence with proper description of the goods knowing fully well that the goods are old and used generators, therefore, the Licencing Authorities deemed to have considered all the aspects in this regard and the contention of the ld. DR is nothing but surmises only. He also pleaded that as the goods have suffered heavy demurrage/detention charges for the last almost 10 months, apart from that the same are required for the laying of the sewerage in Mumbai, therefore, he prayed for release of the goods at the earliest. 12. I have considered the submissions so made in the memorandum of Appeal, the facts of the case and arguments so adva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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