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TMI Blog2023 (12) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... DGFT. When the said policy was in force, at that point of time also several imports have been made for importing second hand multi-function 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. There shall be a direction to the respondents to consider the plea of the petitioners to release the goods by way of provisional release on condition that, the petitioner shall pay/deposit the enhanced duty amount. On receipt of such enhanced duty amount paid by the petitioners, the goods in question shall be released within a period of three (3) weeks thereafter - For payment of such duty, quantification shall be made by the Customs forthwith within one (1) week from the date of receipt of a copy of this order. On receipt of such quantification, the payment shall be immediately made by the petitioners and on receipt of the payment in entirety, the goods shall be released as indicated above at the outer limit of three (3) weeks. Petition disposed off. - Hon'ble Mr. Justice Krishnan Ramasamy For the Petitioner in both Petitions : Mr.Akas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g release of goods. 3. Learned counsel for petitioners submitted that the petitioners are duly registered firms and have been in the business of import and trading of secondhand highly specialized equipments - digital multifunction print and copying machines etc. During the course of petitioners- business, their firms have imported consignment of several units of Secondhand Multifunction Print and copying machines in the year 2023 and sought for assessment and clearance of the above goods. As per the practice prevailing in the Chennai Customs, in respect of import of second hand capital goods, the Officers In-charge, have ordered for 100% examination under first check appraisal. Accordingly, as per the orders of the Officers, examination and inspection of the said machines were carried out by the Directorate General Foreign Trade [for brevity DGFT ] approved Chartered Engineers under the supervision of Customs Officers In-charge. The Chartered Engineers have enhanced the C F value for the consignment as against the actual transaction C F value. Despite the goods having been examined by the DGFT approved Chartered Engineer in the presence of Customs Officers and also having submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated by the Foreign Trade Policy of Government of India. Customs Authority is only a Nodal Agency to streamline and permit import and export based on policy guidelines issued to them. Multi Functional Printers are classified as printers and plotters. As regards used goods imports, there are guidelines of DGFT, which envisage compulsory registration and also approval of DGFT. 6. Learned counsel further submitted that there has been no orders of customs but only verification process is going on and citing these writ petitions, the Customs Department has been blocked and the petitioners, if face an adverse order, they can resort to filing an appeal u/s.128 of the Customs Act, thereafter exhaust a further appeal remedy and then only, they have to approach the Writ Court. The petitioners are aware that as per DGFT policy applicable Compulsory Registration of the manufacturer under present CRO guidelines is required to be done with BIS and also the necessary authorisation has to be obtained from DGFT. The valuation of goods on import is only a procedural matter and not one for open permit for import. The valuation exercise is carried out by importer and by customs to show cause the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods {other than (a) (b) (c) above} Free II. Second Hand Goods other than capital goods Restricted Importable against Authorisation III. Second Hand Goods imported for the purpose of repair/refurbishing/re-conditioning or re-engineering Free Subject to condition that waste generated during the repaid/refurbishing of imported items is treated as per domestic Laws/ Rules/ Orders/Regulations/ technical specifications/Environmental/ safety and health norms and the imported 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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. 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue in the above W.P.Nos.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 impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove order, this Court is inclined to pass the following order: (a) There shall be a direction to the respondents to consider the plea of the petitioners to release the goods by way of provisional release on condition that, the petitioner shall pay/deposit the enhanced duty amount. On receipt of such enhanced duty amount paid by the petitioners, the goods in question shall be released within a period of three (3) weeks thereafter. (b) For payment of such duty, quantification shall be made by the Customs forthwith within one (1) week from the date of receipt of a copy of this order. On receipt of such quantification, the payment shall be immediately made by the petitioners and on receipt of the payment in entirety, the goods shall be released as indicated above at the outer limit of three (3) weeks. (c)It is made clear that this order will not stand in the way for Customs Department to go ahead with the further proceedings including the adjudication in the manner known to law. (d)It is further made clear that in the earlier interim order passed in a related writ petitions by an another Division Bench of this Court, that demurrage charges till date for the goods was directed to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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