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TMI Blog2023 (11) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... apply the requirement as it stands, however, they are applying Public Notice No. 136 of 2018 dated 8 October 2018 issued by the Office of the Commissioner of Customs, NS-III, Mumbai Customs Zone-II. On a plain reading of Public Notice No. 136 of 2018 dated 8 October 2018, it appears that the Commissioner of Customs providing for such requirement under paragraph 6 has actually deviated from the requirements of the 2018 Regulations, and more particularly paragraph 6 of the labelling and marking requirements as contained in Schedule II of the Scheme I, under the said Regulations, as noted by us hereinabove. In taking the position as assailed, the respondents also could not have taken recourse to the applicability of RCR orders (Requirement For Compulsory Registration) inasmuch as the RCR order was wholly irrelevant, in so far as the present goods are concerned. This inasmuch as the RCR order was applicable only to the electronic and information and technology goods , subject matter of Electronics and Information Technology Goods (Requirement For Compulsory Registration) Order 2012, which provides that the standard mark shall be placed on the product and packaging both. There is no ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents which were granted clearance, the packages of these imported goods, contained the standard mark, registration number and model number etc. affixed on the package in compliance of the labelling requirements as per the Bureau of Indian Standards (Conformity Assessment) Regulations, 2018 (for short 2018 Regulation ). 5. It appears that earlier the petitioner was issued a show cause notice in respect of the imports in question, alleging that the consignment in question was not in compliance with the requirement of BIS marking. On such show cause notice, an order-in-original dated 23 May 2023 was passed inter alia confiscating the goods in question. The petitioner in such circumstances had approached this Court in the proceedings of Writ Petition No. 8768 of 2023 and 8769 of 2023 wherein a common challenge was raised, namely to the order-in-original dated 23 May 2023 in respect of the very consignment of the Lithium Ion Cell and subject matter of bills of entry in question. The principal challenge to the order(s)-in-original was to the effect without the petitioner being heard on the show cause notice, the order-in-original was passed ordering confiscation of the goods under the bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finalized after physical examination and analysis of each and every consignment, by the Customs Authorities. However, in respect of a subsequent import, subject matter of both the present proceedings and the Bills of Entries, the details of which are set out in the memo of the petition, the Customs Officer in undertaking inspection of the said goods which were similar to the goods earlier imported, was of the view that the imported goods were not compliant with the Bureau of Indian Standards (BIS). I t was observed that the BIS marking / sticker was not found on the imported goods and that a sticker was only pasted on the cartons / packages where in BIS registration number was mentioned. Thus, the Customs Officer was of the opinion that the petitioners have not complied with paragraph 6 of Public Notice dated No. 136/2018 dated 8 October 2018. In this regard there was correspondence between the petitioners and the Customs Officials. T he petitioners had approached the concerned O fficer who had heard the petitioner s representative. However, before the regular procedure, as known to law, could be set into motion, on the basis of the impressions as formed by the Customs Officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. Such person is required to be given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice, against the grounds of confiscation and imposition of penalty mentioned therewith and thereafter of a reasonable opportunity be given to such person. We note Section 124 which reads thus: 124. Issue of show cause notice before confiscation of goods, etc. No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person- (a) is given a notice in writing with the prior approval of the officer of customs not below the rank of an Assistant Commissioner of Customs, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: PROVIDED that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned orders. Order accordingly. 12. At this stage Mr. Kumar, learned counsel for the respondents would submits that the respondents would intend to issue a show cause notice. If that be so, they are free to take recourse to the appropriate procedure known to law. 13. At this stage Mr. Hidayatullah prays that the petitioners be granted provisional release the goods. We may observe that if law so permits, the petitioners are always at liberty to apply for provisional release of the goods and if such an application is made, the same be decided by the concerned Customs Authorities in accordance with law . 14. All contentions of the parties are expressly kept open. 15. Writ Petitions are disposed of in the above terms. No costs. (emphasis supplied) 6. On the backdrop of the above order passed by this Court, the petitioner approached respondent No. 4 Deputy Commissioner of Customs by a letter dated 24 July 2023 requesting for release of the goods. The request for such release was again reiterated by the petitioner by letters dated 16 August 2023 and 23 August 2023. As the request of the petitioner for release of the goods was not being considered, the present petition has been filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Government of India, to promote electric vehicles which would reduce the environmental pollution. It is thus submitted that the Customs Authorities on ex facie illegal considerations and improper interpretation of the 2018 Regulation, are not clearing the petitioner s goods. It is submitted that such arbitrary position being taken by the respondents is also ex facie contrary to the earlier stand taken by the respondents whereunder the consignment of the same goods under seven companion bills of entries was cleared, without any objection whosoever on the compliance of the BIS norms. It is thus contended that there is no justification whatsoever to detain the present consignment. 10. The petitioner has next contended that knowing well that the present petition is pending adjudication surprisingly, respondent No. 3 issued to the petitioner a show cause notice dated 1 September 2023 under Section 124 of the Customs Act, which is not on a different premise namely that the consignments are not complying the labelling requirement as per the BIS standards. By such notice, the petitioner was called upon to show cause as to why the goods be not confiscated for the said reason. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the goods would be a serious threat to consumer safety, as the goods are prohibited goods. However, as to how the goods can be categorized as not safe and prohibited goods, is not explained and / or no material in that regard is provided in the reply affidavits. It is next contended that if the goods are allowed to be released pending adjudication of the show cause notice dated 1 September 2023, the respondents would not have the goods available to be confiscated, as the present case is not of payment of short duty or less duty, which would require assessment of value of goods or payment of customs duty. 12. It is next contended that the petitioner s contention on the interpretation of the 2018 Regulation and the public notice, is misconceived inasmuch as it would not be permissible for the product to be labelled on the packaging, as labeling and standard mark was required to be affixed on the product even by a sticker. It is contended that the petitioner s reading of the subsequent Public Notice No. 157 of 2018 dated 13 December 2018 is also not correct. It is next contended that the petitioner's reliance on Circular No. 35 of 2017 dated 16 August 2017 to contend that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be required to be tested. The answer to this would clearly depend on the requirements as stipulated by the 2018 Regulation, and primarily the purport of Regulation 6 of the 2018 Regulation. The relevant extracts of the 2018 Regulation read thus:- Schedule II Scheme I .. . .. . Labelling and Marking requirements 6. (1) Each product or the package, as the case may be, shall be marked with the Standard Mark, as specified in Annexure-II. . Annexure-I (Refer sub-paragraph (1) of paragraph 6 of Scheme II) Guidelines for use of Standard Mark The monogram of the Standard Mark consists of the pictorial representation, drawn in the exact style as indicated in the figure in Annexure II and III and its photographic reduction and enlargement is permitted. (i) The Standard Mark can be displayed in single colour or multicolour as per the detials given below. The colour scheme for the Standard Mark to be used in multi-colour shall be used as indicated below. (ii) The license shall display the Standard Mark on the article or the packaging, as the case may be, in a manner so as to be easily visible. (iii) The Standard Mark shall be legible, indelible and non-removable and the durability of mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticularly paragraph 6 of the labelling and marking requirements as contained in Schedule II of the Scheme I, under the said Regulations, as noted by us hereinabove. In taking the position as assailed, the respondents also could not have taken recourse to the applicability of RCR orders (Requirement For Compulsory Registration) inasmuch as the RCR order was wholly irrelevant, in so far as the present goods are concerned. This inasmuch as the RCR order was applicable only to the electronic and information and technology goods , subject matter of Electronics and Information Technology Goods (Requirement For Compulsory Registration) Order 2012, which provides that the standard mark shall be placed on the product and packaging both. We have not been informed by the respondent / Revenue that the consignment in question is a consignment falling under RCR Order . In any event, even in respect of RCR order it is clarified in paragraph 6 of the Public Notice No.136/2018 dated 8 October 2018, that if it is not feasible to place the same on the product for size constraints, it can be put on the packaging only. Thus, we are at a loss to understand as to how the labelling requirement as provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even to the goods which are covered by RCR. As insisted by the respondents and in our opinion, quite erroneously, even if such notice is applied to the goods in question, it cannot be the stand of the department that the 2018 Regulations and more particularly, paragraph 6 of Scheme I of Schedule II, is not relevant, when it mandates that the standard mark can be affixed on the package. It is not in dispute that in the present case, the standard mark is affixed on the package as evidenced from the photograph of the same (Exhibit E) as annexed to the petition at page 38A which is not in dispute. 23. In the above circumstances, we are of the clear opinion that there is no justification whatsoever on the part of the respondents, in not permitting to the petitioner, release of the consignments in question. In fact, we are quite surprised by the stand taken by the department and that too on complete misapplication of the provisions of the 2018 Regulations, as also the Circulars in question. Mr. Hidaytullah, in our opinion, would be correct in his contention that such approach as adopted by the concerned officers of the customs is in fact high handed, unknown to law and the same being co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle the petitioner for release of the goods, we also note that the concerned officers of the respondents have now issued a show cause notice. We are of the opinion that although the show cause notice is challenged in the present proceedings, the proceedings of the show cause notice are required to be independently taken forward. We accordingly, permit the petitioner to reply to the show cause notice and the same be decided as expeditiously as possible in any event within a period of two months from the date, a reply to the show cause notice is filed. 28. In this view of the matter, in our opinion, the goods are illegally detained and without any powers being exercised by the customs authorities under section 110 of the Act and that too for such a long period. We are thus of the clear opinion that the petition needs to succeed. We, accordingly, are inclined to allow the petition in terms of prayer clauses (a) and (b). 29. Insofar as the show cause notice is concerned, we have already observed that the show cause notice needs to proceed independently. Let the same be proceeded in accordance with law and as observed by us hereinabove. 30. In view of the above discussion, we partly all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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