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TMI Blog2021 (4) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with law within a period of four weeks from the date of receipt of a copy of this judgment. Following the decision, writ appeals are allowed on the same lines - decided against Revenue. - Honourable Mr.Justice T.S.Sivagnanam And Honourable Ms.Justice R.N.Manjula For the Appellant : Mr.V.Chandrasekaran (in all appeals) For the Respondents : Mrs.AL.Ganthimathi for R1, Mrs.R.Hemalatha, SSC for R2 to R4 (in all appeals) COMMON JUDGMENT T.S.SIVAGNANAM, J. These writ appeals filed by the Director General of Foreign Trade is directed against the common order dated 25.01.2021 passed in W.P.Nos.8574, 8575, 8576 of 2020. 2. In the said writ petitions, the appellant was the fourth respondent and the respondents 1 to 3 were the Customs Department. The writ petitions were allowed with a direction to release the consignments in question upon remittance of enhanced duty as quantified. 3. The Customs Department had filed writ appeals challenging the common impugned order in W.A.Nos.642, 687, 688, 690, 691, 694, 696, 697 698 of 2021 and the appeals were allowed by this Court, by judgment dated 04.03.2021. The operative portion of the judgment reads as follows: 18.The first issue we need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether, import of goods is prohibited, within the meaning of Section 2(33) of the Customs Act and where, in the Customs Act or any other law for the time being in force, such prohibition is mentioned. Therefore, we need to examine as to whether such goods are restricted or prohibited items. 21.The Ministry of Communication and Information Technology by notification S.O.2357(E) dated 07.09.2012 in exercise of its powers conferred under Section 10(1)(p) of the Bureau of Indian Standards Rules, 1987 issued the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012. Clause 3 of the Order deals with prohibition regarding manufacture, storage, sale and distribution, etc. of goods, which reads as follows: 3.Prohibition regarding manufacture, storage, sale and distribution, etc. of goods:- (1) No person shall by himself or through any person on his behalf manufacture or store for sale, import, sell or distribute Goods which do not conform to the Specified Standard and do not bear the words Self declaration Conforming to IS (Relevant Indian Standard mentioned in column (3) of the Schedule) on such Goods after obtaining Registration from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from MeitY for their import, such imports would be in violation of Compulsory Registration Order, 2012. 25.The Directorate of Revenue Intelligence also issued Alert Circular No.07/2017 dated 11.07.2017 reiterating the stand taken by the Ministry. Another circular was issued by the MeitY in Circular No.1 of 2019 dated 02.05.2019 clarifying that MFDs which are basically printers with additional features like photo copy, scan, fax, etc. are covered in the category Printers, Plotters notified under the Order dated 03.10.2012. 26.The argument of the respondent importer is that the earlier notification which had only listed out the printers and plotters cannot now be expanded to cover MFDs by virtue of a Circular and therefore, the same is without jurisdiction. We will deal with this contention a little later. 27.The MeitY by notification in S.O.1236(E) dated 01.04.2020 added another twelve products to the schedule to the Registration Order, 2012. In paragraph 2 of the notification, it has been stated as follows: 2.Since the Multifunction Devices [MFDs] are basically printers with additional capabilities like Fax, Scan, Photocopy, etc., thus, it is clarified that they are covered unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Customs Department to prove compliance of the Registration Order, 2012. Therefore, on account of unscrupulous person resorting to such imports, the necessity arose for the MeitY to issue clarification/circular. Therefore, it has to be necessarily taken that for all purposes, the Department has been consistent in their stand that MFDs are covered within the scope of Printers. This was made doubly clear by issuing of the notification dated 01.04.2020. 31.We find that in none of the above referred decisions which were referred to by the respondent, the above contentions have been dealt with. In any event, with utmost respect we would humbly observe that any direction issued for provisional release being interlocutory in nature cannot be cited as a precedent. It was lamented before us by the respondent/writ petitioner that how may times the respondent can approach the Court for relief when several consignments of the same item has been released. Unfortunately the respondent/writ petitioners are before a Constitutional Court exercising power under Article 226 of the Constitution of India and not before the Customs Authorities or before the Special Valuation Branch of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitioner dated 09.06.2020, we find that the application is not a simple application for provisional release but in fact it covers most of the grounds which have been raised in the writ petition. It is rather surprising that an application for provisional release would contain such details without even the Department calling upon the respondent importer to furnish details or to give explanation. 34.In the light of the above, we hold that the contention advanced by the learned Additional Solicitor General merits acceptance. The orders of provisional release passed pursuant to the directions issued by the Writ Court being interlocutory in nature cannot be considered as a precedent. Merely by stating that identical imports were allowed to be provisionally cleared can be no reason to permit the respondent to clear the goods by way of issuance of a writ of Mandamus. This is more so in the instant case, because the matter is being considered after the notification in CRO dated 01.04.2020 which has made the items as prohibited items. Admittedly, none of the statutory notifications or amendments are put to challenge before this Court and we do not accede to the argument that the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same relief needs to be granted and two of the Division benches have directed the importers to approach the Department seeking release of the goods and we fully subscribe to the said view because in a writ petition, the Court cannot give a declaration as regards the classification of the goods. 38.The learned Additional Solicitor General rightly referred to the observations made by the High Court of Kerala in the case of Commissioner of Customs vs. Shri Amman Dhall Mill [Cus.Appeal No.14 of 2020 dated 22.01.2021] , wherein it has been observed that exercise of power and discretion under Section 125 of the Customs Act are specific and generally governed by the applicable policy, notification, etc. In the said case, the imported goods was green peas and the Court observed that the primary authority has noted that by keeping in view the stand taken by the Union of India before the Hon'ble Supreme Court in Agricas LLP case, the available stock position of green peas is treated as surplus and declined release and ordered confiscation. Though in the said case, the Court examined the correctness of the order passed by the Tribunal in an appeal filed under Section 130 of the Act, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic Notice or an Authorisation issue in this regard. Import of second hand capital goods, including refurbished/re-conditioned spares shall be allowed freely. However, second hand personal computers/laptops, photocopier machines, air conditioners, diesel generating sets will only be allowed against a license. Import of re-manufactured goods shall be allowed against a license. 19.In terms of the above, all second hand goods except second hand capital goods are restricted for import. It is not in dispute that 201 machines which were imported by the appellant were second hand goods. Thus, going by the first limb of para 2.17, license is required. In the second para, the Policy allows import of second hand capital goods including refurbished/reconditioned spares without obtaining any license. There is a restriction for import of second hand Photocopier machines and other items mentioned therein. The appellant did not produce a Chartered Engineer's certificate when the goods were imported. Therefore, the goods were subjected to examination by Docks Officer in the presence of a Chartered Engineer and certified that the goods are 4 to 10 years old, they are used and not reconditione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... csimile transmission as in the case of the imported goods. Further the Tribunal noted that DGFT notification No.31/2005 dated 19.10.2005 uses the expression photocopier machines and therefore, there is no warrant to read the expression appearing in the DGFT notification as conforming to any one particular expression used in the Tariff as these expressions are not identical and no Tariff item is mentioned in the DGFT notification. 40.In the result, the writ appeals are allowed and the order passed in the writ petitions are set aside. The appellant, Customs Department is directed to consider the applications filed by the respondent/writ petitioners for provisional release and pass orders on merits and in accordance with law within a period of four weeks from the date of receipt of a copy of this judgment. No costs. Consequently, connected miscellaneous petitions are closed. 4. In the above decision, the learned Standing Counsel for the appellant-Department was also heard and the stand taken by them in the writ petitions was also noted and the writ appeals were allowed. Thus, following the above decision, these writ appeals are allowed on the same lines. No costs. Consequently, connec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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