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TMI Blog2019 (1) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... lier on more than one occasion, similar consignments of the respondent or others may have been cleared by the customs authorities at the Calcutta, Chennai or Cochin ports on payment of redemption fine cannot be a justification simpliciter to demand parity of treatment for the present consignment also. The defence that the DGFT had declined to issue such authorisation does not appeal to the Court. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For Respondent(s) Mr. Nikhil Jain, AOR JUDGMENT NAVIN SINHA, J. Leave granted. 2. The respondents during October- November, 2016 imported certain consignments of Multi- Function Devices (Digital Photocopiers and Printers) (hereinafter referred to as MFDs ). The Commissioner of Customs held that the imports were in violation of the Foreign Trade Policy framed under the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as the Foreign Trade Act ) and Rule 15(1)(2) of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (hereinafter referred to as Waste Management Rules ). Redemption fine was imposed under Section 125 of the Customs Act, 1962 and the consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Copying Machines. Adverting to the provisions of the Foreign Trade Act and the Foreign Trade Policy framed thereunder, it was held that the MFDs were not prohibited but restricted items for import. Section 11(8) and (9) of the Foreign Trade Act provided for confiscation and redemption of goods imported without authorisation upon payment of market value. The order for release of the goods was upheld subject to execution of a simple bond without sureties for 90% of the enhanced assessed value, with further liberty to the Director General of Foreign Trade (hereinafter referred to as the DGFT ), along with directions. 5. Shri Maninder Singh, learned senior counsel appearing forthe appellant submitted that import of the MFDs without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent has obtained the same before release of the consignment. The question for disposal of the imported machine at this stage is premature as it has a utility life of 5 to 7 years. The consignment was not a prohibited but restricted item. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The discretionary power has to be tampered with reason and has to be read along with the Foreign Trade Act and the policy framed under the same. The Customs Department has consistently in the past been permitting the release of MFDs on levy of redemption fine. The discriminatory treatment with regard to the present consignment is unjustified. The DGFT had declined to issue authorisation certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court. 9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules,1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e generated indigenously within the country. 11. Rule 13(2) provides the procedure for import of other wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions used Multifunction Print and Copying Machines (MFDs). Entry 4(j) lists out five documents required for import of used MFDs. The respondents have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be not applicable to the subject goods. 12. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of other wastes shall be deemed illegal if it is without permission from the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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