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TMI Blog2023 (12) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... nction devices and similar issue was raised that these are all the multi function devices coming under Sl.No.(b). Therefore, unless otherwise authorization is obtained from the DGFT, the same cannot be imported. In the Notification No.5/2015-2020, dated 07.05.2019, only two clauses are available viz., (a) and (b), but, in the case of Foreign Trade Policy 2023, there are four clauses under Sl.No.I. This Court is of the considered view that as per Foreign Trade Policy, 2023, the petitioners' goods would not fall under the category I(b), but it falls under the category I(d) which indicates that other than goods mentioned in I(a), I(b), I(c), all other second-hand capital goods can be imported freely without any restriction. Therefore, if the petitioners not fall under clause I(b) automatically they fall under I(d). The Supreme Court has taken note of the said fact and stayed the confiscation of goods in a similar matter. Further, this Court, on a comparison of Notification No.5/2015-2020, dated 07.05.2019 and Foreign Trade Policy 2023, does not find any new changes brought in so that prohibited multi function devices should get authorization from DGFT. This Court is inclin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds having been examined by the DGFT approved Chartered Engineer in the presence of Customs Officers and also having submitted their Inspection Report and Valuation Certificate, the Customs Authorities have not allowed the clearance of the above consignment till date. Since the petitioners have imported a consignment of several units of second hand highly specialized equipments digital multifunction print copying machines in terms of para 8(a) to (d) vide Amendment Order dated 01.07.2021 in S.O.2844(E) issued by Ministry of Electronics and Information Technology [MEITY], they are exempted from Requirement of Compulsory Registration with BIS. Further, the subject goods are also permissible for imports as Free in terms of para 2.31 Sl.No.1(d) under the category of second-hand capital goods without any conditions as per Foreign Trade Policy 2023 (w.e.f. 01.04.2023). Thus, there is no basis for customs authorities not to release the goods of the petitioners thereby causing huge losses on account of blockage of investment and loosing shelf life of the machines. 4. While so, the first respondent has arbitrarily precipitated the matter by way of issuance of impugned Show Cause N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedural matter and not one for open permit for import. The valuation exercise is carried out by importer and by customs to show cause the value of goods and its identity and not on classification. The Multi Functional Devices would fall under category of printers and plotters only as clarified by MEITY. Further, the Foreign Manufacturers Certification Scheme has to be complied for import. In view of multiple writ petitions filed against Customs Department as the petitioners are misinterpreting the single aspect of weightage and other requirements required for highly specialized equipments are trying into the classification challenge. Since the importers are not complying with the DGFT guidelines and the Compulsory Registration Orders applicable the said import would be treated as 'prohibited' as compliance is not made by importers. Submitting as above, learned counsel prays for dismissal of the present writ petitions. 7. Heard learned counsel appearing for petitioners, learned Senior Standing Counsel and learned Central Government Standing Counsel appearing for respondents and perused the materials available on record. 8. The central issue to be decided in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported item is reexported as per the Customs Notification. 10. By referring to Sl.No.I(b), learned Senior Standing Counsel and learned Central Government Standing Counsel appearing for respondents submitted that the multi function devices imported by the petitioners would fall under that category. Therefore, before importing goods, they have to get authorization from DGM. However, learned counsel for the petitioner submitted that the goods mentioned in Sl.No.I(b) are required to be compulsorily registered, hence, the petitioners' goods would not fall under the category I(b), but it falls under the category I(d) which indicates that other than goods mentioned in I(a), I(b), I(c), all other second-hand capital goods can be imported freely without any restriction. 11. Now the issue is whether the goods of petitioners can be freely imported. 12. The Government of India, Ministry of Commerce Industry, Department of Commerce, Directorate General of Foreign Trade, Udyog Bhawan, comes out with a similar policy in the year 2019 vide Notification No.5/2015-2020, dated 07.05.2019. Paragraph No.2 of the said policy is extracted hereunder: 2. Further, Para 2.31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), I(c), all other second-hand capital goods can be imported freely without any restriction. Therefore, if the petitioners not fall under clause I(b) automatically they fall under I(d). The Supreme Court has taken note of the said fact and stayed the confiscation of goods in a similar matter. Further, this Court, on a comparison of Notification No.5/2015-2020, dated 07.05.2019 and Foreign Trade Policy 2023, does not find any new changes brought in so that prohibited multi function devices should get authorization from DGFT. The petitioners stand on the same footing as that of the petitioners before the Supreme Court in Spl. Leave to Appeal (C) No.7565 of 2021. The order of stay of confiscation of goods passed by the Hon'ble Supreme Court is in force till date. 16. Further, learned Single Judge of this Court also granted release of goods in W.P.Nos.1393 of 2022 etc. batch, wherein the learned Single Judge has dealt with all the aspects. The relevant portion of the said order reads thus: 12. Whether a notification has been issued on 18.03.2021 under which, the goods in question, namely Multi- Function Devices are brought under the category of printers with effect from 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1393 of 2022 etc. batch are one and the same. Therefore, the said order is squarely applicable to the cases on hand also. 18. Therefore, following the view taken by the Hon'ble Supreme Court and learned Single Judge of this Court, this Court is inclined to allow these writ petitions to the extent of releasing the goods provisionally. 19. Learned Senior Standing Counsel and learned Central Government Standing Counsel appearing for respondents also brought to the notice of this Court that in the cases dealt with by Hon'ble Supreme Court as well as the learned Single Judge, the goods were confiscated, but, in the present case, no confiscation has been made. 20. In the aforestated circumstances, this Court is of the view that the petitioners are in a better position than the petitioners before the Supreme Court and the learned Single Judge. In view of the above findings, this Court does not find any impediment for the respondents to release the goods provisionally. 21. The other contention of respondents that the petitioners, without availing the appeal remedy, have straight away approached this Court is concerned, this Court finds that the goods were imported by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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