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TMI Blog2024 (4) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel representing Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India appearing for Union of India/respondent No. 2 in W.P. No .2014 of 2024, Mr. G. Mohan Rao, learned Senior Counsel representing Mr. Malla Reddy Gadipally, learned counsel for the petitioner in W.P. No. 843 of 2024 and Mr. Dominic Fernandes, learned Senior Standing Counsel for CBIC appearing for the respondent Nos. 1, 3 and 4 in W.P. No. 2014 of 2021 and respondent Nos. 1 to 3 in W.P. No. 843 of 2024. 3. The brief facts relevant for disposal of the two writ petitions are that the petitioners in both these writ petitions are traders in the business of importing and sale of printing, photocopying and scanning machines. As a part of the business, the petitioners also import and sale multi-functional devices used for printing, photocopying and scanning etc. In the course of trading, the petitioners purchased few MFDs from their supplier situated in foreign countries of UAE and Singapore respectively and proceeded to import them. When the product reached its intended place of final delivery, the petitioners filed a bill of entry before the respondent authorities. However, the respondent authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents to pass orders for release of the goods provisionally. 8. Per contra, the learned Senior Standing Counsel for CBIC so also the learned counsel for Union of India opposing the petition submits that it is a case where the product which has been imported by the petitioner falls within the restrictive category under the foreign trade policy and therefore, the petitioner cannot be permitted for release of the goods provisionally. 9. According to the learned Senior Standing Counsel for CBIC, since these goods have been imported without proper authorization/license from the authorities concerned, they are liable to be confiscated and if the goods are provisionally released at this juncture, the same can cause irreparable loss to the Department as also to the Government. 10. Learned Senior Standing Counsel for CBIC contended that there are various aspects which have to be checked, verified, scrutinized and enquired into before passing of a final order of confiscation. It was further contended that the authorities are required to check whether the product imported is one which would otherwise fall within the category of an e-waste or not, whether the product is one which meets al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific and cannot be generalised for manufacturing. 14. It was further contended that the goods imported by the petitioner are general purpose copiers/printers etc., that too as old as 10-15 years. Even if these goods are imported as new goods, it requires BIS certification as per the prevailing laws and the compliance is followed by all the reputed equipment manufacturers while importing this equipment. Under the said circumstances, it is highly unlikely and irrational to say that such second hand goods are eligible for exemption from BIS. 15. It was also the contention that since the impugned goods are specifically listed in the schedule of Order, 2021, the goods do not merit classification as highly specialized goods and hence, the exemption does not apply. 16. Lastly, it was contended that the petitioner will be given every opportunity to represent his case before the Customs authorities to explain the technicalities and other aspects of the product in the adjudication proceedings to be taken up under Section 28 of the Customs Act, 1962 (for short, 'the Act'). This being the case, approaching the High Court at this juncture is clearly a misuse of process of law. 17. Having he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecify multifunctional devices. The product among others under the Order, 2012 which was held to be restricted was printers/plotters and during the said period when the Order, 2012 was in force, a similar dispute arose before this Court in W.P. No. 7665 of 2019 which stood decided on 06.04.2018 whereby the High Court had allowed the writ petition of similar nature permitting release of the goods in accordance with law and also in accordance with the decisions taken in the past in this regard. A similar writ petition was again filed vide W.P. No. 19587 of 2020 in which the Division Bench of this High Court on 09.11.2020 while admitting the writ petition, directed the respondents to provisionally release the petitioner's consignment of MFDs without insisting for authorization/license as contended by the Department. 19. Recently, in two set of writ petitions, first being W.P. No. 29673 of 2023 and batch in the case of M/s. Simple Machines v. The Commissioner of Customs and Others vide order dated 23.11.2023, the Madras High Court relying upon an earlier decision of Madras High Court in W.P. No. 1393 of 2022 in paragraph Nos. 20 and 21 have held as under: "20. In the aforesaid circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al devices in the schedule makes it amply clear that prior to Order, 2021 MFDs were not a notified item and since 18.03.2021 when the Order, 2021 was notified, MFDs became restricted goods under the foreign trade policy. 22. However, shortly thereafter vide a notification dated 01.07.2021, the Order, 2021 stood amended and in addition to the five clauses in Order, 2021 that was earlier notified, the Government introduced three more clauses i.e. clauses 6, 7 and 8. Clause 8 was introduced by way of an amendment dated 01.07.2021 and which is most relevant for the present dispute in the instant two writ petitions, which reads as under: "8. Exemption for Highly Specialized Equipment (HSE) : HSE as per the criteria given below shall stand exempted from the application of this Order provided they are manufactured/ imported in less than 100 units per model per yeara. Equipment Powered by three phase power supply or b. Equipment Powered by single phase power supply with current rating exceeding 16 Ampere or c. Equipment with dimensions exceeding 1.5 m x 0.8 m or d. Equipment with weight exceeding 8-Kg" 23. From plain reading of the aforesaid clauses, what is culled out is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be entitled for import of the said good, which may lead to a situation which would otherwise appear to be arbitrary. 26. Thus, for all the aforesaid reasons, it is ordered that let the respondent authorities pass an order on the application filed by the petitioners for provisional release of the goods subject to the conditions that: a) 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 four (04) weeks thereafter. b) For payment of such duty, quantification shall be made by the Customs forthwith within one (01) 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 four (04) 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 so far as the condition of the petitioner th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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