2024 (1) TMI 836 - HC - Customs

Second-hand multifunction printers prohibited under Foreign Trade Policy, provisional release ordered under Section 125 with bank guarantee requirement

M/s. Skylark Office Machines Versus The Additional Commissioner of Customs (Concor ICD), The Deputy/Asst. Commissioner of Customs (Concor ICD), Chennai

The HC ruled that second-hand multifunction printers/devices imported by petitioner were prohibited under Foreign Trade Policy 2015-2020 on both the Bill ... Provisional release of old and used digital multifunction copying, printing and scanning machines of A3 size - prohibited goods or not - enhancement of value - date of Bill of Lading at the port of exportations or the date of filing of the Bill of Entry in India is relevant for determining the goods or restricted goods or prohibited goods for the purpose of Customs Act, 1962? - Section 110 A of the Customs Act, 1962 - HELD THAT:- All Electronic and IT Goods notified under the Electronic and IT Goods (Requirements of Compulsory Registration), 2012 as amended from time to time or Second hand Multi Functional Devices including printers are prohibited and were importable only against authorization subject to the condition laid down in the aforesaid Ministry of Electronics and Information Technology from 19.05.2019. The position under Paragraph 2.13 of the New Policy with effect from 01.04.2023 is not different. Under it, imports are restricted wherever an importer complies with the requirement of All Electronic and IT Goods notified under the Electronic and IT Goods (Requirements of Compulsory Registration), 2012. Imports are prohibited in case of import of unregistered/non-compliant notified products as in CRO, 2012, as amended from time to time is “prohibited”. There is no doubt that the second hand and used multifunction printers/devices imported by the petitioner were prohibited under the provisions of the Foreign Trade Policy 2015-2020 as in force on the date of the respective Bill of leading on 13.09.2021 and on the date of filing of the respective Bill of Entries on 23.09.2021 for home clearance. However, there is relaxation under the new policy - there is a drift that any prohibition or restriction or obligation relating to import or export of any goods or class of goods or clearance thereof provided in any other law for the time being in force, or any rule or regulation made or any order or notification issued thereunder, shall be executed under the provisions of that Act only, if such prohibition or restriction or obligation is notified under the provisions of the Customs Act, 1962, subject to such exceptions, modifications or adaptations as the Central Government deems fit. The Hon'ble Supreme Court has ordered release of similar consignments in the case of M/S DELHI PHOTOCOPIERS VERSUS THE COMMISSIONER OF CUSTOMS (GR. 5) CHENNAI II & ORS. [2021 (8) TMI 1244 - SUPREME COURT]. The goods were prohibited. They were ordered goods to be released under Section 125 of the Customs Act, 1962. Notification dated 01.04.2020 amending the Schedule of the “Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012 has merely clarified Multifunction Devices (MFDs) are basically printers with additional capabilities like Fax, Scan, Photocopy etc. Thus, it was clarified that they are covered under the category of Printers/Ploters notified vide Gazette Notification dated 3rd October 2012. The imported consignments may be allowed to be cleared within a period of thirty (30) days from the date of receipt of a copy of this order subject to the petitioner providing suitable securities in the form of Bank Guarantee to cover the redemption fine that may be imposed on the petitioner for importing prohibited goods. Petition allowed. Issues Involved:1. Provisional release of imported goods under Section 110A of the Customs Act, 1962.2. Applicability of the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012 and 2021.3. Determination of the relevant date for import regulations - Bill of Lading or Bill of Entry.4. Prohibition and restriction under Foreign Trade Policy and Customs Act.Summary:Issue 1: Provisional Release of Imported GoodsThe petitioner sought a Mandamus to direct the respondents to provisionally release four consignments of old and used digital multifunction devices upon payment of applicable Customs Duty on the enhanced value. The goods were initially detained under Section 110A of the Customs Act, 1962. The Court had earlier ordered the release of two consignments based on a Supreme Court judgment in Delhi Photocopiers v. Commissioner of Customs, which allowed provisional release of similar goods.Issue 2: Applicability of Electronics and Information Technology Goods OrdersThe petitioner argued that the imports were covered by the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012, amended by the Notification dated 01.04.2020. The respondents contended that the imports were prohibited under the amended Order dated 18.03.2021, effective from 17.09.2021. The Court noted that the goods in question were multifunction devices, which were classified as printers with additional capabilities, thus falling under the restricted category.Issue 3: Relevant Date for Import RegulationsThe petitioner filed Bills of Entry on 23.09.2021, while the Bill of Lading was dated 13.09.2021. The Court discussed whether the relevant date for determining the applicability of import regulations should be the date of the Bill of Lading or the Bill of Entry. The Court concluded that the date of the Bill of Entry is relevant for determining the applicable rate of duty and the regulatory framework.Issue 4: Prohibition and Restriction under Foreign Trade Policy and Customs ActThe Court examined the Foreign Trade Policy 2015-2020 and the amendments made therein, which prohibited the import of second-hand multifunction devices unless they complied with specific conditions. The Court also referred to Section 2(33) of the Customs Act, defining 'prohibited goods,' and noted that the imports were subject to authorization under the Foreign Trade Policy. The Court highlighted that the goods could be released provisionally under Section 125 of the Customs Act upon payment of appropriate Customs duty and security for any potential redemption fine.Conclusion:The Court directed the provisional assessment of the Bills of Entry and ordered the release of the imported consignments upon payment of Customs duty and provision of security in the form of a Bank Guarantee to cover any redemption fine. The writ petition was allowed, and the consignments were to be cleared within thirty days, subject to compliance with the specified conditions.