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TMI Blog2013 (5) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... g Order and in certain cases, examination was done and report was forwarded to the Custom House, Chennai confirming that the quantities and models declared was in conformity with the declarations and documents filed along with Bill of Entry. However, in certain cases, the respondents had not initiated any action in respect of examination of the goods. Further, in both the cases, despite the petitioners approaching the respondents seeking clearance of goods under "Free importability", no action was taken by the respondents for early clearance of the goods. Aggrieved by the same, the petitioners have come up before this Court with the above writ petitions. 3. Learned counsel appearing for the petitioners in all the writ petitions would submit that with regard to identical goods imported earlier, other importers filed writ petitions before this Court and the Hon'ble Single Judge of this Court in a batch of Writ Petitions in W.P. Nos. 21732 and 21733 of 2011 [2012 (281) E.L.T. 178 (Mad.)] and others considered the arguments of both parties and by order dated 27-2-2012 directed the authorities to release the goods in question which had already been inspected by the authorised engineers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zardous Rules, 2008. He further contended that the imported goods fall under "Restricted Category" and they require pre-import clearance as being hazardous. He further contended that the learned Single Judge had not considered the above issues but stated that the respondents were not in a position to show by sufficient evidence that the goods imported by the petitioner are mere Electrical and Electronic Assemblies falling under Basel No. B1110 of Part B of Schedule III of the said Rules. He further submitted that they produced enough evidence before the learned Single Judge. He further contended that the learned Judge had not considered all the objections raised in the counter and also Minutes of 22nd meeting of Technical Review Committee dated 11-8-2011, Minutes of 24th meeting of Technical Review Committee dated 16-11-2011 and letter of the Director of Ministry of Environment and Forest dated 30-11-2011. He further stated that against the judgment of the learned Judge relied on by the petitioners, the Customs Department had filed Writ Appeal in W.A. No. 824 of 2012 etc. batch and the same is pending before the Division Bench of this Court. 5. Learned counsel appearing for respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the learned counsels appearing for the petitioners had submitted that the claims made on behalf of the respondents, that the goods imported by the petitioners are "Hazardous Waste', in the light of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, cannot be sustained. The goods imported by the petitioners are freely importable goods. Therefore, no licenses or permissions are required for the importing of such goods, as alleged on behalf of the respondents. Further, the goods imported by the petitioners are second hand capital goods and they would not fall under the category of 'offending' and prohibited goods, in terms of Section 111 of the Customs Act, 1962. Further, the goods in question cannot be termed as Electrical or Electronic Assemblies falling under Basel No. B1110 part B of Schedule 3 of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. In fact, the Electrical and Electronic Assemblies may form a part of certain machines, instruments or equipments. However, they cannot be equated with the Digital Multifunction Print and Copying Machines, which have been imported by the petitioners. Electrical and electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the authorised engineers, on payment of the appropriate customs duty, subject to the adjudication process conducted as per the relevant provisions of law and in case relating to which the authorised chartered engineers had not inspected the goods in question, the customs authorities concerned shall direct the inspection of such goods before they are released and such goods may be directed to be released on payment of the appropriate customs duty and on the fulfillment of the conditions prescribed by law. Under these circumstances, this Court is of the view that the only fresh objection taken by the respondents before this Court with respect to imported goods is that as per the recent Notification No. 1 (RE-2012)/2009-2014, New Delhi dated the 5th June, 2012, they fall under "Restricted Category", which Notification contents are extracted above. Learned counsel for the Respondents argue that the said notification operates retrospectively. However, a reading of the above notification makes it clear that the said notification will come into force only with effect from 5th June 2012 in view of the specific wordings "This shall come into force w.e.f. 5th June, 2012". It is relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia and Others v. Asian Food Industries reported in (2006) 13 SCC 542 = 2006 (204) E.L.T. 8 (S.C.) considered the scope of Section 5 and 3(2) of the Foreign Trade (Development and Regulation) Act, 1992 and in paragraph 48, held as follows :- "48. The Delhi High Court, however, in our view correctly opined that the Notification dated 4-7-2006 could not have been taken into consideration on the basis of the purported publicity made in the proposed change in the export policy in electronic or print media. Prohibition promulgated by a statutory order in terms of Section 5 read with the relevant provisions of the policy decision in the light of sub-section (2) of Section 3 of the 1992 Act can only have a prospective effect. By reason of a policy, a vested or accrued right cannot be taken away. Such a right, therefore, cannot a fortioribe taken away by an amendment thereof." In yet another judgment, in the case of Gem Granites v. Commissioner of Income Tax, T.N. reported in (2005) 1 Supreme Court Cases 289, the Supreme Court considered the scope of amendment as to whether it comes into effect prospectively or retrospectively and in paragraph 14, the Supreme Court held as follows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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