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TMI Blog2019 (3) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing certain conditions - petition disposed off. - WP. Nos. 26049, 26054, 32154, 32155, 32156, 32157, 32159, 32642, 32646, 32649 & 33982 of 2018 And WMP. Nos.30262, 30270, 37407, 37409, 37410, 37413, 37415, 37853, 37857 & 37859 of 2018 - - - Dated:- 22-2-2019 - Dr. Justice Anita Sumanth For the Petitioner : Mr.N.Viswanathan in all WPs For the Respondents : Mr.K.S.Ramasamy, CGSC, in WP. No.26054 of 2018, Mr.T.L.Thirumalaisamy, CGSC in WP. No.26049/2018, Mrs.R.Hemalatha, Senior Standing Counsel in WP. Nos.32154,32155, 32156, 32157, 32159, 32642, 32646 32649 of 2018 COMMON ORDER The petitioners in all eleven (11) Writ Petitions seek the issuance of Writs of Mandamus directing the assessment and release of the consignments all of which comprises several units of old, used Digital Multifunction Print Copying Machines (in short DMPCM ). 2. The facts in regard to all Writ Petitions are common, except in relation to the details of consignment in each individual Writ Petition viz., 202 Units in WP. No.26054 of 2018, 466 Units in WP. No.26049 of 2018, 107 Units in WP. No.32154 of 2018, 119 Units in WP. No.32155 of 2018, 544 Units in WP. No.32156 of 2018, 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition, as obtained, was that the imports of the said products were permitted till December 2006 without any restriction whatsoever. In December 2006, a sub-heading bearing No.8441 3110 was introduced in respect of the products in question and photo-copier machines were placed under CTH No.8443 3930 of the Customs Tariff Act from the Tariff Heading of 90091200. The Tariff Act thus recognised the two categories of the products as distinct and different and this distinction was also accepted by the Foreign Trade Policy, which adopted different classifications for photocopier machines on the one hand and DMPCM on the other. 9. The issue was carried to the Supreme Court and was decided in favour of the importers, in the case of Atul Commodities Private Limited v. Commissioner of Customs, Cochin, 2009 (235 ELT 385 (SC)) . This conclusion was accepted by the authorities, however imposing a restriction on the import of second hand photocopiers alone by amending paragraph 2.17 of the Foreign Trade Policy. Reliance is thus placed by the petitioners on the distinction recognised under the statute with respect to photocopiers and DMPCM. 10. Based on this distinction, various importers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid. However, the authorities now appeared to be raking up the issue again, insisting upon the furnishing of a certification from the DGFT for clearance of the goods. It is, in these circumstances that the present writ petitions have been filed. 15. Counters have been filed in WP. Nos.26049, 26054 33982 of 2018. The stand of the revenue is that the clearance of the consignment would be contingent upon the fulfilment of all conditions as laid down in the amended Foreign Trade Policy (FTP) that are: i. Production of authorization/import license issued by the DGFT authorities since the subject goods are restricted under para 2.31 of FTP 2015-20. ii. Registration under the provisions of Requirements for Compulsory Registration with BIS as per the Electronics and Information Technology goods (Requirements for compulsory Registration) Order 2012 dated 07.09.2012 and subsequent orders dated 25.06.2013 and 07.11.2014 issued by MeitY. iii. Compliance of procedures as per the provisions of Hazardous and other Wastes (Management Transboundary Movement) Rules 2016, E-Waste Management Rules, 2016. 16. Thus, according to the authorities, the consignments are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proper from with such security and conditions as the [adjudicating authority] may require. 22. My attention is drawn to a judgement of the Supreme Court in the matter of Commissioner of Customs Vs. Athul Automations Private Limited in Civil Appeal Nos.1057, 1058, 1060 1059 of 2019 dated January 24 of 2019. The Full Bench of the Supreme Court was concerned with a challenge to an order of the Customs Excise and Service Tax Appellate Tribunal that had been in favour of the importer, such importer not having challenged the Foreign Trade Policy itself. In such circumstances, the Bench, at Paragraph 13, permits the release of the goods stipulating the conditions of release as under: 13. We therefore find no reason to interfere with the impugned orders. In the statutory scheme of the Foreign Trade Act as discussed, we further find no error in the penultimate direction to the respondents for deposit of bond without sureties for 90% of the enhanced valuation of the goods leaving it to the DGFT to decide whether confiscation needs to be ordered or release be granted on redemption at the market value, in which event the respondents shall be entitled to set off. 23. The af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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