Provisional release of restricted imported machinery remains available pending adjudication where hazardous waste action is not initiated.

Imported second-hand digital multifunction print and copying machines were treated as restricted under the Foreign Trade Policy and potentially liable to confiscation under customs law, but the customs framework still allowed provisional release under Section 110A, redemption in lieu of confiscation under Section 125, and Section 11(9) of the Foreign Trade (Development and Regulation) Act, 1992. Re-export could not be directed under the Hazardous Wastes Rules because no proceedings had been initiated by the competent authority under those Rules. In the absence of such action, and given the availability of provisional release, refusal to release the goods was not justified; the importer was entitled to release on payment of applicable duties and charges, subject to adjudication.

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Issues: Whether the importer was entitled to provisional release and clearance of the imported second hand digital multifunction print and copying machines pending adjudication, notwithstanding the restriction under the Foreign Trade Policy and the stand taken under the Customs Act and the Hazardous Wastes Rules.

Analysis: The imported goods were treated as restricted under the Foreign Trade Policy and were also sought to be proceeded against as prohibited goods under the Customs Act and the Foreign Trade (Development and Regulation) Act. The legal framework recognised confiscation for prohibited or improperly imported goods, but it also provided for provisional release under Section 110A of the Customs Act, redemption in lieu of confiscation under Section 125 of the Customs Act and Section 11(9) of the Foreign Trade (Development and Regulation) Act, 1992. The Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2007 required action by the authorities competent under those Rules before any direction for re-export could be made, and no such proceedings had been initiated. In the absence of action by the competent authority under the Hazardous Wastes Rules, and since provisional release was available under the customs regime, refusal to release the goods was not justified.

Conclusion: The importer was entitled to provisional release of the goods upon payment of applicable customs duties and charges, subject to the eventual adjudication.

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