TaxTMI 
TaxTMI 
2023 (12) TMI 198
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.... For the W.P.Nos.30500, 30501 &30506 of 2023 : Mr.Rajendran Raghavan, Senior Standing Counsel COMMON ORDER As the issue involved in all these writ petitions are similar, they are considered and decided by this common order. 2. W.P.Nos.28817 and 30506 of 2023 have been filed challenging the show cause notices issued by the first respondent dated 22.09.2023 and 05.10.2023 respectively. The other writ petitions have been filed seeking release of goods. 3. Learned counsel for petitioners submitted that the petitioners are duly registered firms and have been in the business of import and trading of second hand highly specialized equipments - digital multifunction print and copying machines etc. During the course of petitioners' business, their firms have imported consignment of several units of Second hand Multifunction Print and copying machines in the year 2023 and sought for assessment and clearance of the above goods. As per the practice prevailing in the Chennai Customs, in respect of import of second hand capital goods, the Officers In-charge, have ordered for 100% examination under first check appraisal. Accordingly, as per the orders of the Officers, examination and ins....
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....in other writ petitions have filed the same seeking for release of goods. 5. Learned counsel for respondents submitted that the petitioners have imported used copier machines and at the point of entry, the Customs Department required the petitioners to produce copies of authorization for import of such items with necessary approval of DGFT as per Foreign Trade Policy Guidelines and also to produce the Compulsory Registration Certificate of BIS as indicated by the Foreign Trade Policy of Government of India. Customs Authority is only a Nodal Agency to streamline and permit import and export based on policy guidelines issued to them. Multi Functional Printers are classified as printers and plotters. As regards used goods imports, there are guidelines of DGFT, which envisage compulsory registration and also approval of DGFT. 6. Learned counsel further submitted that there has been no orders of customs but only verification process is going on and citing these writ petitions, the Customs Department has been blocked and the petitioners, if face an adverse order, they can resort to filing an appeal u/s.128 of the Customs Act, thereafter exhaust a further appeal remedy and then only, th....
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.... conditions laid down under Electronics and IT Goods (Requirements of Compulsory Registration) Order, 2012 as amended from time to time. (ii) Import of unregistered/non-complaint notified products as in CRO, 2012 as amended from time to time is "Prohibited". I(c) Refurbished/reconditioned spares of Capital Goods Free Subject to production of Chartered Engineer Certificate to the effect that such spares have at least 80% residua life of original spare. I(d) All other second hand capital goods {other than (a) (b) & (c) above} Free II. Second Hand Goods other than capital goods Restricted Importable against Authorisation III. Second Hand Goods imported for the purpose of repair/refurbishing/ re-conditioning or reengineering Free Subject to condition that waste generated during the repaid/refurbishing of imported items is treated as per domestic Laws/ Rules/ Orders/ Regulations/ technical specifications/ Environmental/ safety and health norms and the imported item is reexported as per the Customs Notification. 10. By referring to Sl.No.I(b), learned Senior Standing Counsel and learned Central Government Standing Counsel appearing for respondents submitted that ....
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....erefore, unless otherwise authorization is obtained from the DGFT, the same cannot be imported. 14. The issue was dealt with by the Apex Court and the Apex Court passed an order in Spl. Leave to Appeal (C) No.7565 of 2021. 15. In the Notification No.5/2015-2020, dated 07.05.2019, only two clauses are available viz., (a) and (b), but, in the case of Foreign Trade Policy 2023, there are four clauses under Sl.No.I. This Court is of the considered view that as per Foreign Trade Policy, 2023, the petitioners' goods would not fall under the category I(b), but it falls under the category I(d) which indicates that other than goods mentioned in I(a), I(b), I(c), all other second-hand capital goods can be imported freely without any restriction. Therefore, if the petitioners not fall under clause I(b) automatically they fall under I(d). The Supreme Court has taken note of the said fact and stayed the confiscation of goods in a similar matter. Further, this Court, on a comparison of Notification No.5/2015-2020, dated 07.05.2019 and Foreign Trade Policy 2023, does not find any new changes brought in so that prohibited multi function devices should get authorization from DGFT. The petitio....
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....dgments, where, the learned Single Judge order dated 25.01.2021 has been confirmed by the Hon'ble Supreme Court by order dated 11.08.2021 by reversing the Division Bench order dated 04.03.2021. 16. In that view of the matter, the arguments advanced by the learned Senior Counsel appearing for the petitioners that, the issue raised in these writ petitions especially in the context of the prayer of Mandamus sought for herein is covered by the said decision of the Court of Law including the decision of the Hon'ble Supreme Court dated 11.08.2021 is to be accepted." 17. The issue in the present cases and the issue in the above W.P.Nos.1393 of 2022 etc. batch are one and the same. Therefore, the said order is squarely applicable to the cases on hand also. 18. Therefore, following the view taken by the Hon'ble Supreme Court and learned Single Judge of this Court, this Court is inclined to allow these writ petitions to the extent of releasing the goods provisionally. 19. Learned Senior Standing Counsel and learned Central Government Standing Counsel appearing for respondents also brought to the notice of this Court that in the cases dealt with by Hon'ble Supreme Court a....