TaxTMI 
TaxTMI 
2017 (3) TMI 495
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....nes are brought under restricted category, such goods are not prohibited to import. As per Sec.80 of the Customs Act, 1962, goods which are prohibited alone can be detained. It is submitted by the petitioner that, drones are available even on on-line shopping, and large number of engineering students are assembling drones as part of their project during their study. Drones are generally permitted as long as they fly over private property. If anyone wishes to fly drone over public property, permission should be obtained from the local authorities. Till Ext.P3 notification, there was no restriction to import drones. It is also stated, there is no notice or information given, regarding the restriction or prohibition to import. According to the petitioner, the entire actions of the respondent are illegal and unsustainable under law, and therefore, the respondent may be directed to release the goods detained as per Ext.P1. 3. Respondent has filed a statement and among other contentions, it is stated that, petitioner on his arrival on 08.11.2016 brought one Drone along with his personal baggage. The Ministry of Commerce & Industry, Department of Commerce, Directorate General of Foreign ....
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....the goods, failing which, the goods will have to be adjudicated as mandated under the provisions of the Customs Act, 1962. It is also stated that the writ petition is premature in nature. 5. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent. Perused the documents on record and the pleadings put forth by the respective parties. 6. The question to be resolved, revolves around Ext.P3 Notification dated 27.07.2016 issued by the Ministry of Commerce & Industry, Department of Commerce, Government of India, under which a restriction is created with respect to import of drones along with other similarly functional Aircraft systems. As discussed above, in order to import a drone, prior clearance of the Director General of Civil Aviation and import license from DGFT is required. According to the learned counsel for the petitioner, so far as there is no prohibition created under the Customs Act, for the import of drone, merely because a restriction is created as per Ext.P3, the goods cannot be detained. It is also contended that, after the adjudication proceedings as per Sec.125 of the Customs Act, option to pay fine in lieu of confiscati....
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....r the foreign trade policy or is dealing with specified services or specified technologies. (3) All goods to which any Order under subsection (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. (4) without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods shall be prohibited for import or export, as may be required under this Act, or rules or orders made thereunder". 9. Therefore, according to the learned Standing Counsel, when there is a restriction created for import of drone, as per Ext.P3, petitioner ought to have secured necessary permission/licence from the DGCA and DGFT. Having not done so, the detention of the goods as per Ext.P1 is in accordance with law. Therefore, if the petitioner makes available necessary orders as per Ext.P3, the goods can be released to the petitioner, otherwise petitioner will have to face the adjudication proceedings, and provisional release of the goods is n....
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....be granted, by the Government of India. Petitioner has not undertaken such an exercise. Therefore, when there is a restriction created as a pre-condition, if the goods are provisionally directed to be released, the restriction looses its value, primacy and importance, which is not expected as per Ext.P3 notification. So also, when a restriction is created, it cannot be treated as a casual affair, and the provisional release of the goods can be ordered. 13. I am also convinced that, after the adjudication process, the release of the goods in lieu of the confiscation is a discretion left with the adjudicating authority, since under Sec.125, the terminology used is "may". When there is a clear restriction created, and if the adjudicating authority is permitting to release the goods, overlooking such a restriction of pre-condition, then the purpose of the restriction is defeated. The restrictions are created by orders of the Government of India and the permissions to be secured are from the superior authorities of the Government of India and therefore, such restrictions are binding on the adjudicating authority. 14. Moreover, 'imported goods' defined under Sec.2(25) of the Cu....