TaxTMI 
TaxTMI 
2019 (5) TMI 169
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....r, vide its report, and in terms of the judgment rendered by the Division Bench of the High Court Andhra Pradesh and Telangana at Hyderabad in W.P.No.2728 of 2018 dated 06.04.2018 which was accepted by the Central Board of Indirect Tax and Customs, New Delhi. 2. With the consent of the learned counsel on either side, W.A.No.1215 of 2019 is taken as the lead case. 3. The respondent imported MPCMs with accessories and attachments through the Chennai Customs classifying the goods under CTH 84433100. The rate of duties applicable was zero percent BCD as exempted under Serial No.2 of Notification No.24/2005-Cus., dated 01.03.2005 with zero percent surcharge and 18% IGST. The consignment was ordered for examination under first check appraisement system as they being second hand / used machinery. The goods were examined in the presence of the Chartered Engineer approved by the Director General of Foreign Trade (DGFT) and the reports were forwarded. The report stated that no major repairing or reconditioning was noticed by the Chartered Engineer who also confirmed that the goods are not e-wastes and non-hazardous. The Department took a stand that the import of the second hand machines ar....
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....ase the goods provisionally against PD bond and cash deposit as per the percentage followed by the Custom House. In the said representation, the respondent contended that if the import of such second hand machinery is restricted/curtailed, it may result to closure of Indian Manufacturers and the "Make in India" policy of the Government may become an exercise in futility. With regard to the MeitY/BIS Guidelines - Rules, the respondent took a stand that the subject machines are not notified in the order and notification of MeitY and it would not be open to the custom authorities to insist for registration of the subject machines in terms of the order dated 07.09.2012 and the notification of MeitY dated 07.11.2014. 5. The respondent relied upon the decision of the High Court of Andhra Pradesh in W.P.No.2728 of 2018 dated 06.04.2018. The representation dated 06.07.2018 was received by the appellant/Department on 17.07.2018. Immediately thereafter, on 27.07.2018, the respondent filed the writ petition for the aforementioned relief. In the writ petition, the Customs Department (appellants) alone were impleaded as respondents and the authorities of DGFT and MeitY were not made party res....
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....ds imported by them require prior authorisation/import licence for being imported into India. Apart from the requirement to have an authorisation/import licence, there are two other requirements to be fulfilled by the importer for being entitled to seek clearance of the goods. The three conditions which we have noted above are independent and they are not optional, in other words, all the three conditions are required to be fulfilled. We say so because, in the batch of cases before us, none of the respondents/writ petitioners have either challenged the Foreign Trade Policy or the Statutory Notification issued by MeitY. 10. The appellants have stated before us that the respondent complied with the procedures as per the provisions of Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 and E-Waste Management Rules, 2016 to certain extent. We take it that, there has been fulfilment of one of the three conditions, yet the respondent/importer has not fulfilled two of the conditions, viz., authorisation/import licence and BIS certificate as required under the 2012 order dated 07.09.2012 and subsequent orders dated 25.06.2013 and 07.11.2014 issued by MeitY. 11. B....
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....ntation dated 06.07.2018 (17.07.2018) does not explicitly state under which provision of the Customs Act they requested for clearance of the goods. It merely requested for provisional clearance. The relevant provision under the Customs Act which provides for provisional clearance of goods is Section 110A. The said provision would apply to goods, documents or things seized under Section 110, may, pending the order of the adjudicating authority be released to the owner on taking a bond from him in the proper form with such security and conditions as the adjudicating authority may require. Thus, prerequisite for Section 110A to be attracted is seizure of the goods under Section 110 and in terms of sub-Section (1) of Section 110, if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods. Admittedly, till date, the goods have not been seized. The respondents do not dispute the said factual position. This is more so because, the goods have been warehoused in terms of Section 49 of the Act. 13. Section 49 of the Act states that where in the case of any imported goods, whether dutiable or not, entered for home cons....
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....representations, that too, without affording reasonable time to the authorities to act upon such representations. From the facts, it is clear that the respondent/importer did not afford reasonable time to the Department to consider the representation more so when they have warehoused the goods at their option in terms of Section 49 of the Act. 17. In the case of E.S.I. Ltd. (supra), the goods which were imported were originally detained and subsequently, the rooms in which the goods were kept were sealed by the Customs officers and therefore, the Court held that the importer's dominion over the goods initially detained went out of the hands of the importer, after the rooms in which the goods have been kept were sealed by the customs officers and it would tantamount to seizure for all practical purposes. In the cases on hand, there is nothing placed on record by the respondent/importer that there is a prohibitory order prohibiting them from seeking clearance of the goods. The stand of the Department is that three conditions have to be fulfilled by the importer individually and independently and they had fulfilled only one of the three conditions and the remaining two are yet t....
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....lity life of 5 to 7 years, as certified by the Chartered Engineer. Release of the consignment was directed under Section 125 of the Act, as the importers therein were held to have substantially complied with the requirements of Rule 13 of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 read with Schedule VIII Entry 4(j) except for the country of origin certificate. The Tribunal further noticed that earlier, similar consignments of the importers and others have been released at Calcutta, Chennai and Cochin Ports upon payment of redemption fine. 20. The Revenue preferred appeal to the High Court which held that the MFDs correctly fell in the category of "other wastes" under Rule 3(1)(23) of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 read with Part B and Part D of Schedule II Item B1110 dealing with used MultiFunction Printer and Copying Machines. Further, the High Court held that MFDs were not prohibited but restricted items for import. The order for release of the goods was upheld subject to execution of a simple bond without sureties for 90% of the enhanced assessed value with further liberty to the DGFT along....
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....ther wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions MFDs and under Entry 4(j), a list of five documents required for import of used MFDs have been mentioned and the respondents therein were found to be substantially complaint in this regard and the requirement for the country of origin certificate was found to be vague by the High Court. Further, the Hon'ble Supreme Court noted that the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 certificate has been issued to the respondents/importers therein by the Central Pollution Control Board before the goods have been cleared. Ultimately, the Hon'ble Supreme Court held that in the statutory scheme of the Foreign Trade Act as discussed in the judgment, there is no error in the penultimate direction to the importers for deposit of bond without sureties for 90% of the enhanced valuation of the goods leaving it to the DGFT to decide whether confiscation needs to be ordered or release to be granted on redemption at market value in which event, the respondents therein shall be entitled to set off. 24. As discussed in the earlier part of this judgment, there are three conditions t....
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.... in the case of Athul Automations Private Limited (supra) is factually distinguishable apart from the fact that the said case arose out of an adjudicatory process in which the factual position was threadbare analysed by two fact finding authorities. That apart, the Hon'ble Supreme Court left the ultimate decision to be taken by DGFT. 27. As pointed out earlier, none of the provisions of the Foreign Trade Policy or the notification/orders were challenged by the respondents before the learned Writ Court and therefore, the respondent cannot risile from complying with the conditions which have been imposed under the notification and orders which have been issued in public interest. As pointed out by the Hon'ble Supreme Court that merely because a few consignments have been permitted to be cleared in different ports can have no bearing on the case on hand, as each case has to be decided on its own facts. The learned Single Bench had directed furnishing of bond for 90% of the enhanced valuation of the goods and security for the remaining 10%. To be noted that the stage is yet to come for arriving at a valuation as the case is yet to be adjudicated and even much prior to that, th....