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2023 (12) TMI 1222
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....on in W.P.No.29673 of 2022, etc., this Court had already dealt with a similar issue and passed the order dated 23.11.2023. Therefore, the learned counsel for the petitioner would submit that the said order will squarely applicable to the present case also and hence, he requested this Court to pass similar order. 4. Per contra, the learned counsel for the respondent would submit that the previous batch of writ petitions were filed challenging the show cause notice. However, in the present writ petitions, no show cause notice has been issued by the respondents. Hence, he would submit that the said order will not applicable for the present writ petitions. 5. In reply, the learned counsel for the petitioner would submit that in the previous batch of writ petitions, in W.P.No.29673 of 2023, etc., the relief was sought only for the release of goods and the same were not filed against the issuance of show cause notice. Further, at the paragraph 21 clause (ii) of the aforesaid order dated 23.11.2022, this Court had directed only for the release of goods. Hence, he would submit that the said order is squarely applicable to the present case. 6. Heard the learned counsel for the peti....
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....re also permissible for imports as ?Free? in terms of para 2.31 Sl.No.1(d) under the category of secondhand capital goods without any conditions as per Foreign Trade Policy ? 2023 (w.e.f. 01.04.2023). Thus, there is no basis for customs authorities not to release the goods of the petitioners thereby causing huge losses on account of blockage of investment and loosing shelf life of the machines. 4. While so, the first respondent has arbitrarily precipitated the matter by way of issuance of impugned Show Cause Notices on 22.09.2023 and 05.10.2023 to the petitioners in W.P.Nos.28817 and 30506 of 2023. Further, the respondent department now proposes to proceed against the petitioners for confiscation of the subject goods u/s.111(d) and 111(m) of the Customs Act, 1962 and for imposition of penalty against the petitioners u/s.112(a) of the Customs Act, 1962. These actions have been proposed to be initiated by the respondent department on a complete misconception and misreading of the relevant regulations. The presumption/conclusion inferred in the impugned show cause notice that the subject goods are prohibited goods is entirely fallacious and contrary to the actual scheme of Fo....
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....e not complying with the DGFT guidelines and the Compulsory Registration Orders applicable the said import would be treated as -prohibited- as compliance is not made by importers. Submitting as above, learned counsel prays for dismissal of the present writ petitions. 7. Heard learned counsel appearing for petitioners, learned Senior Standing Counsel and learned Central Government Standing Counsel appearing for respondents and perused the materials available on record. 8. The central issue to be decided in the present case is whether the materials imported by the petitioners falls under Clause 2.31 of the Foreign Trade Policy 2023 effective from 01.04.2023 under the category second hand goods. 9. It may be apposite to extract Clause 2.31 of the Foreign Trade Policy 2023 hereunder: Import policy for Second Hand Goods: 2.31 Second Hand Goods Sl. No. Categories of Second-Hand Goods Import Policy Conditions, if any 1 Second Hand Capital Goods I(a) i. Desktop Computers; ii. Refurbished/reconditioned spares of refurbished parts of Personal Computers/ Laptops; iii. Air Conditioners; iv. Diesel generating sets ....
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....ted 07.05.2019. Paragraph No.2 of the said policy is extracted hereunder: 2. Further, Para 2.31(I)(a) of Foreign Trace Policy, 2015-20 is revised as under:- S.No. Categories of Second Hand Goods Import Policy Conditions, if any 1 Second Hand Capital Goods (a) i. Desktop Computers; ii. Refurbished/reconditioned spares of refurbished parts of Personal Computers/Laptops; iii. Air Conditioners; iv. Diesel generating sets Restricted Importable against Authorisation (b) All electronics and IT Goods notified under the Electronics and IT Goods (Requirement of Compulsory Registration) Order, 2012 as amended from time to time Restricted (i) Importable against an authorization subject to conditions laid down under Electronics and Information Technology Goods (Requirement 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". 13. Sl.No.(b), referred to above, states that all electronics and IT goods notified under the Electronics and IT Goods (Requirement of Compulsory Registration) Order....
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....uestion are prohibited goods or not, all these matters are pending before the law Courts. 13. In this regard, the policy decision taken by the Government i.e., the Revenue has already been put under challenge in a batch of cases before this Court, which are said to be pending. 14. Moreover, in the order dated 11.08.2021, the Hon'ble Supreme Court has taken note of these factors, where the arguments advanced on behalf of the Revenue before the Hon'ble Supreme Court was that, on and from 01.04.2020, the goods, according to the Department, are clearly prohibited goods and on and from that date, unless an order is made under Section 125 of the Customs Act, the goods stands confiscated, the Hon'ble Supreme Court had stayed the confiscation process and also has observed that, the notification dated 01.04.2020 is the subject matter of controversy before the Hon'ble Supreme Court, particularly in view of the subsequent notification dated 18.03.2021. Therefore, the goods which are in question were allowed to be released by way of provisional release on the same terms and conditions, which means, the enhanced duty has to be paid by the petitioners/importers as a condition p....
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....state of mind and that is the reason why they have not taken any decision till date. It is the duty of the department to pass appropriate orders within a reasonable time and they cannot unnecessarily detain the goods for a long period of time. In the result, (i) W.P.Nos.28817 and 30506 of 2023 are disposed of directing the petitioners to cause reply to the show cause notice issued to them and the respondent department is directed to consider the same and pass necessary orders within a stipulated time. As far as release of goods is concerned, the same shall be released provisionally. (ii) W.P.Nos..29673, 27544, 27547, 27548, 28115, 28119, 29678, 29680, 29684 of 2023 & 30490, 30492, 30495, 30496, 30498, 30500, 30501 & 30503 of 2023 are allowed and the following order is passed: (a)That there shall be a direction to the respondents to consider the plea of the petitioners to release the goods by way of provisional release on condition that, the petitioner shall pay/deposit the enhanced duty amount. On receipt of such enhanced duty amount paid by the petitioners, the goods in question shall be released within a period of three (3) weeks thereafter. ....