TaxTMI 
TaxTMI 
2019 (10) TMI 671
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....P (2015-2020) issued by the 4th respondent DGFT, in so far as, it requires an authorization for import clearance of secondhand digital Multifunction Print & Copying Machines is ex-facie illegal as it is excessive of the powers conferred on him as a delegated authority apart from being contrary to the provisions of law and the ratio of the judgments of the Hon'ble Supreme Court, thus making the said para 2.31 excessive and without jurisdiction and therefore is liable to be set aside as prayed for. (ii) Restriction imposed on the impugned goods by the DGFT an authority created in terms of Section 5 of the Foreign Trade (Development & Regulations) Act, 1992 is totally against the mandate contained under Section 6(3) of the FTDR Act, 1992 which does not authorize him to deal with the policy provisions concerning the import and export of goods, and therefore any prohibition, restriction or regulation of any goods for export or import had to be notified by an order published in the official gazette in terms of Section 3 (2) of the FDTR and in fact the said power had been reserved by the Central Government without being delegated to the DGFT in terms of Section 6 (3) of the FTDR ....
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....licy for removal of Secondhand Digital Multifunction Print & Copying Machines from restricted list in the light of the provisions contained in the Hazardous and other waste (Management and Transboundary Movement) Rules, 2016 and which is pending for clarification from the Ministry of Electronics and Information Technology (MeitY), who appears to have an vested interest in restricting these item alone whereas no such restrictions are imposed for import of large number of other electronic equipment/machinery including Printing machines. (vi) Petitioner above all submits that the DGFT following the recommendations of the DIPP to the effect that permitting import of the used MFDs will cause harm to the domestic industry and refusing to grant any authorization and also having not framed any guidelines or procedures for the grant of the authorization and thereby indirectly enforcing prohibition on the import of the subject goods being excessive to the law all the more the action of the DGFT authorities have to be held bad and unsupported. (vii) In terms of the amendment made to the Hazardous and Other Waste Rules (HOW) 2016 dated 04.04.2016, wherein, it has been specifi....
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..... The fact admitted on record, shows that the CRO registration for safety standards could be issued only to goods manufactured in India and not to any trader and that without the design of the machines it is not possible to issue the certificate and also the further fact that no manufacture of the MFDs are admittedly undertaken in India which show that there are no possibility for including the MFD in the CRO schedule should also render the demand of the customs authorities unfounded and baseless. (xi) Further fact that BIS Act under which the rules and orders are framed having only confined to articles manufactured in India and having not specifically covered the used and second hand goods coupled with the fact that the machines under import are used goods at the hands of the users abroad and brought into India as such without any refurbishment or repair or medication should also negate the claim of the respondent customs authorities for the production of the registration under the CRO which position has also been confirmed by the judgment of the Hon'ble High Court of Judicature at Hyderabad. (xii) Furthermore, the fact that there are no "policy condition" specif....
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....ion 110A read with Section 125, it is clear that both these provisions do not distinguish between goods which are prohibited from being imported into or exported out of India and goods in respect of which there is no such prohibition to further hold that sec. 125 obliges the adjudicating authority to give to the owner of the goods, an option to pay fine in lieu of confiscation, which has not been done in this case. (xvii) The question whether goods prohibited for import as per provisions contained in Sec. 2 (33) of the customs Act is permissible for redemption is also well settled by the decision of the Hon'ble Bombay High Court in the case of CC -vs- Alfred Menezes reported in 2009 (242) ELT 334 (Bom) approving the decision of the Bombay "holding that even though the good are prohibited for import as per provisions contained in Sec. 2 (33) of the customs Act, there is discretion vest with the officer u/s.125 o f the Customs Act to release the confiscated goods in terms as set out therein, which decision was also not considered by the customs authorities. (xviii) The customs authorities also ought to haveappreciated the judgment of the division bench of Punjab & H....
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.... dated 17.09.2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (iii) W.M.P.No.15879 of 2019 in W.P.No.16133 of 2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 263 units of the secondhand Digital Multifunction Print & Copying Machines imported vide Bill of Entry No.6818086, dated 15.06.2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (iv) W.M.P.No.15880 of 2019 in W.P.No.16137 of 2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 365 units of the secondhand Digital Multifunction Print & Copying Machines imported vide Bill of Entry No.8257822, dated 29.09.2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (v) W.M.P.No.15916 of 2019 in W.P.No.16206 of 2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 126 units of the secondhand Digital Multifunction Print &....
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....ein, to provisionally assess and permit the clearance of 233 units of the secondhand Digital Multifunction Print & Copying Machines imported vide Bill of Entry No.8179560, dated 24.09.2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (xii) W.M.P.No.19993 of 2019 in W.P.No.20803 of 2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 362 units of the secondhand Digital Multifunction Print & Copying Machines imported vide Bill of Entry No.8835577, dated 13.11 .2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (xiii) W.M.P.No.19996 of 2019 in W.P.No.20809 of 2019: To direct the respondents 1 to 3 herein, to provisionally assess and permit the clearance of 229 units of the secondhand Digital Multifunction Print & Copying Machines imported vide Bill of Entry No.8889241, dated 17.11.2018, upon the payment of applicable duties of Customs on the enhanced assessable value as appraised by the approved chartered engineer. (xiv) W.M.P.No.20110 of 2019....
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....en the law mandates certain requirements to be complied with for import, the petitioners are bound to carry out the same before making import. In the instant case the following conditions are imposed for the import of the subject goods, they are (i) Production of authorisation/import license issued by the DGFT authorities since the subject goods are restricted under para 2.31 of FTP 2015-20. (ii) Registration under the provisions of "Requirements for Compulsory Registration" with BIS as per the Electronics and Information Technology Goods (Requiremens for Compulsory Registration) Order 2012, dated 07.09.2012 and subsequent orders dated 25.06.2013 and 07.11.2014 issued by MeitY. (iii) Compliance of procedures as per the provisions of Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016, 2016 & E-Waste Management Rules, 2016. (v) It is not in dispute that all the aforesaid conditions are to be complied with for the import of the subject goods and admittedly the writ petitioners did not comply with the said conditions for the reason best known to them. The said conditions were imposed in public interest. Therefore allowing th....
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.... in the judgement pronounced on 25.04.2019 in W.A(nos.) 1215 of 2019 etc., (Commissioner of Customs and ors Vs M/s. City Office Equipment) had distinguished the Judgement pf Hon'ble Supreme Court in M/s. Atul Automations Pvt Ltd (supra) and allowed the writ appeals by setting aside the order of the learned single Judge which ordered release of goods imported violating Foreign Trade Policies. The Hon'ble Division Bench further directed the commencement of adjudication process by issuing show cause notice to the importers. Hence for all these reasons the petitioners are not entitled for any interim relief for release of goods. Further granting of such relief would make the writ petition infructuous as the petitioners are primarily concerned with the release of goods alone. The writ petitioner are not entitled to get the release of goods unless they succeed in the writ petitions. Therefore the petitioner are not entitled for any interim relief. (ix) The petitioners have developed the habit ofmaking import continuously/successively by violating the Foreign trade policies and approach this Court time and again for interim relief for the release of goods . There is no bo....
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....th respondent seeking to stop the clearance of the goods is not sustainable in law. (ii) As regards the decision taken by the DGFT to either close the files pertaining to the applications made by the petitioners for the grant of the authorisation or rejection of the same in two of the cases at the outset the petitioners submitted that they were never communicated of the said decision by the DGFT even through online. In such a factual position the petitioners submitted that they have sworn to their respective affidavits as to the fact in their knowledge at the material time and therefore, the contention made in paragraph No.3 of the short counter affidavit of the 4th respondent is not proper or acceptable. Without prejudice the above contention the petitioners submitted that the reasoning given by the 4th respondent for closing their applications on the ground that they are in the process of notifying the import policy for Electronic and IT Goods and accordingly observing that the matter may be dealt with as per the Electronics and IT Goods (Requirement of Compulsory Registration) order 2012 only show that the DGFT has given up the requirement of notifying these goods under....
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....f free trade promulgated by the government in the above rules among other things only the petitioners have moved the Writ of Declaration before this Court and admitted by this Court. (v) As regard the judgment of the other Hon'ble bench of this Court the same was passed by distinguishing the judgment of the Supreme Court Judgment to cancel the Mandamus issued by the Learned Single Judge by recording the reasons that the petitioners in that case have not Challenged the FTP and MeitY notifications which actually does not arise and therefore it is the submissions of the petitioners that the said decision has no relevance to the writ petitions moved by these petitioners challenging the FTP provision. (vi) Petitioners further submitted that the furtherclaim of the 4th respondent that the release of the goods would cause serious damage and irreparable loss to the public at large is totally unfounded and baseless and therefore unacceptable as the said claim is not supportable by the fact and law concerning this case, more so when the impugned goods are admittedly not manufactured in India and are also not prohibited for import. (vii) In view of the above, petiti....
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.... of 2018 dated 13.02.2019. 5. Hon'ble Supreme Court in Jammu and Kashmir vs. Mohal Yaqoob and others, reported in 1992 (4) SCC 167, held that whenever any stay vacation application has been filed for vacation of interim order, the proceedings of contempt should be deferred till the disposal of such application. Though in the reported judgment, it is a vacate stay petition, the same can be made applicable to the case on hand also. Therefore, we intend to take up WMP Nos.9704, 9706 & 9714 of 2019, filed for modifications. 6. In support of the contentions raised in the modification petitions, Ms.Aparna Nandakumar, learned counsel for the petitioners, invited the attention of this Court to paragraph Nos.41 and 42 of the judgment of the Kerala High Court in Cus.A.Nos.18 & 19 of 2017 dated 14.03.2018 and the same is extracted hereunder. "41. Admittedly, the goods were imported without an authorization from DGFT, which was an essential requirement as per the FTP. In the present case, the Commissioner has thought it fit to impose 20% of the value as redemption fine, obviously without looking into the Foreign Trade Act. The Tribunal reduced i....
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....it to the DGFT to decide whether confiscation needs to be ordered or release be granted on redemption at the market value, in which event the respondents shall be entitled to set off." 8. She therefore contended that directions issued in WPNos.15621 to 15623 dated 13.02.2019, to be modified to the extent of inclusion of pre-empt the consideration of payment of redemption filed by DGFT, as done in the decision of the Kerala High Court, and approved by the Hon'ble Supreme Court, extracted supra. 9. When the matter was listed for the first time andwhen attention of this Court was invited to the judgment of the Kerala High Court and affirmation by Hon'ble Supreme Court Mr.Viswanathan, learned counsel for the petitioner contended that unlike in the case before Kerala High Court, wherein it was admitted that the goods are restricted goods, in this case, the petitioners have contended that the goods cannot be construed as restricted goods. The issue as to whether it is restricted goods or not, is pending adjudication and therefore argument was made that the ratio of the Kerala High Court, as affirmed by the Hon'ble Supreme Court, cannot be made appli....
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....ted, it shall grant the same: Provided that-(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. 5. Application for review in Court consisting of two ormore Judges. Where the Judge or Judges, or any one of the judges, who passed the decree or made the order a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. 6. Application where rejected (....
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....hat it is only an executing authority, whose powers are limited to the conditions and restrictions imposed by the DGFT and the Central Government under the Foreign Trade (Development and Regulation) Act, 1992. DGFT, who is empowered to impose redemption fine, has not objected to the release of the goods. 12. Order which has reached finality can only be a reviewed, subject to satisfying the statutory provisions stated supra. Petition for modification is not a substitute for review. If the petition for modification has to be accepted then, it can be on any one of the grounds stated supra. For the abovesaid reasons, we are of the view that the instant modification petition cannot at any stretch of imagination be a review petition, so that the merits of the case or order could be either reviewed or modified. Therefore, we are not inclined to modify the common order made in WP Nos.15621 to 15623 of 2018 dated 13.02.2019 and the modification petitions WMP Nos.9704, 9706 and 9714 of 2019, are dismissed. 13. Now that we have dismissed the modification petitions, the question that remains to be considered is whether, Contempt Petitions have to be heard and proceeded furthe....