TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 836
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....2021 - 2022 dated 06.10.2021 (3) STA/IR/O&VC/C-430/2021-2022 dated 07.10.2021 & (4) STA/IR/O&VC/C-435/2021-2022 dated 08.10.2021, in line with the directions of this Hon'ble Court in W.P.Nos.8574 of 2020 and seven others batch dated 25.01.2021 as upheld by the Hon'ble Supreme Court of India vide, Order dated 11.08.2021 in SLP.No.7565 of 2021 batch. 2. The petitioner is seeking provisional release of the goods which are admittedly prohibited under Section 110 A of the Customs Act, 1962. 3. The petitioner had originally filed four Bill of Entries. The details of the Numbers, Date, Invoice value and the Value adopted in the Bill of Entries are as under:- Date Bill Of Entry No. Date Invoice No. Actual Transaction Value in US$(C&F) 13.09.2021 5413583 28.08.2021 20216 1,11,760 17.09.2021 5474613 04.09.2021 0004 1,05,000 23.09.2021 5559768 11.09.2021 0172 73,095 23.09.2021 5560004 11.09.2021 841 1,34,500 4. Earlier this Court by its order dated 16.06.2023 had directed the Department to release the goods covered by the Bill of Entry No.5413583 dated 13.09.2021 and Bill of Entry No.5474613 dated 17.09.2021. The operative portion of the said order reads as und....
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....e fact that the matter was pending before this Court, the Department went ahead and confiscated the goods which are the subject matter of these petitions on 17.07.2021. Mr. N. Venkataraman, learned ASG, realizing the difficulty in his way, has 3 asked the Department to stay its hands so far as the confiscation is concerned. We see no reason to differ from a number of orders that have been passed by this Court in the past for provisional release of goods. However, it has been pointed out to us that at least on and from 01.04.2020, the goods, according to the Department, are clearly prohibited goods and on and from this date, unless an order is made under Section 125, the goods must stand confiscated. We stay the confiscation of these goods. The Notification dated 01.04.2020 is the subject matter of controversy before this Court, particularly in view of a subsequent Notification dated 18.03.2021 that has been pointed out by Mr. Arvind Datar, learned senior counsel. We, therefore, allow the goods involved in these petitions, to be provisionally released on the same terms that have been indicated in all the other cases. The order dated 18.09.2020 may, in particular, be looked at for ....
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.... the Customs Act. The aforesaid statutory provision stated as follows:- "15. Date for determination of rate of duty and tariff valuation of imported goods.- (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which 3[a bill of entry for home consumption in respect of such goods is presented under that section]; (c) in the case of any other goods, on the date of payment of duty: 4[Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be.] (2) The provisions of this section shall not apply to baggage and goods imported by post." 7. Based on a reading of this aforesaid position, it is the date of bill of entry that would de....
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....fied that since the Multifunction Devices (MFD) are basically printers with additional capabilities like tax, scan, photocopy etc., they are covered under the categories of printers/plotters notified vide Gazette Notification dated 03.10.2012. 12. The clearance of these imported Multi Functional Devices have been further delayed by the respondents on account of invocation of order dated 18.03.2021 of Ministry of Electronics and Information Technology in S.O.1248(E) which was to come into force at the expiry of six (6) months from the date of its publication with effect from 17.09.2021. 13. The learned Senior Counsel for the petitioner would submit that the issue is now covered by the decision of the Hon'ble Supreme Court rendered in Delhi Photocopiers vs. Commissioner of Customs (GR.5) Chennai II and Others in SLP(C).No.7756 of 2021 and etc., batch dated 11.08.2021 arising out of a decision of the Hon'ble Division Bench of this Court in the case of The Commissioner of Customs (Gr.5) and others vs. M/s.Best Mega International dated 04.03.2021 in W.A.No.642 of 2021 and etc., batch, content of which is already extracted in order dated 16.06.2023 of this Court in this case. ....
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....he valuation of a certified Engineer. Adjudication proceedings to be initiated/will continue to be concluded, as expeditiously as possible. No costs. Connected Miscellaneous Petitions are closed." 15. The appeal of the Customs Department before the Hon'ble Division Bench of this Court was allowed by an order dated 04.03.2021 in W.A.Nos.642 of 2021 and etc., batch. The said order has been now interfered by the Hon'ble Supreme Court by its order dated 11.08.2021 as referred to supra. 16. The learned Senior Counsel for the petitioner has also placed reliance on the decision of the Telangana High Court at Hyderabad in the case of R.R.Marketing vs. The Union of India and Others, W.P.No.28391 of 2019.Wherein, it was held as follows:- "Heard counsel for petitioner and Sri Namavarapu Rajeshwar Rao, Assistant Solicitor General, for respondents 1 to 4, who seeks time for filing counter. Prima facie, the Circular No.1/2019 dt.02.05.2019, which was relied upon by the 3rd respondent in the impugned order dt.13.11.2019 (Order-in-Original No.91/2019) cannot be said to have amended the Notification published in the Gazette of India vide S.O.No.2357(F) dt.03.10.2012 notifying the Electr....
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....were prohibited if they did not conform to the Specified standard or do not bear the words "self declaration-conforming to IS (Relevant Indian Standard mentioned in Column (3) of the schedule) on such goods after obtaining the Registration from the Bureau. 21. The only exception that provided was for the goods meant for export under proviso to Sub-Rule (1) to Rule 3 to Electronic and Information Technology Goods (Requirements for Compulsory Registration) Order 2012 vide Notification dated 07.09.2012 in S.O.2357(E). It reads as under:- "3: Prohibition regarding manufacture, storage, sale and distribution etc., of goods. 3(1) No person shall by himself or through any person on his behalf manufacture or store for sale, import, sell or distribute Goods which do not conform to the Specified Standard and do not bear the words "Self declaration - Conforming to IS (Relevant Indian Standard mentioned in column (3) of the Schedule) on such Goods after obtaining Registration from the Bureau: Provided that nothing in this Order shall apply in relation to manufacture of Goods meant for export." 22. Sub-rule 2 to Rule 3 to the aforesaid Order reads as follows:- "2. The substandard or d....
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....ditional capabilities like Fax, Scan, Photocopy etc., thus, it is clarified that they are covered under the category of Printers/Plotters notified vide Gazette Notification dated 3rd October 2012. The other provisions of the aforesaid Gazette notification dated 3rd October 2012 would apply as before." 28. Thus, it was clarified that Multi Function Devices were covered under the above mentioned Order which was notified vide Gazette Notification dated 03.10.2012. 29. This notification was subject matter of SLP(C).No.7756 of 2021 and etc., batch, wherein the Hon'ble Supreme Court has passed an interim order dated 11.08.2021 and allowed provisional clearance, content of which has been extracted above in Pargarph 3 of this Order. 30. Meanwhile, Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012 was replaced by Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2021 vide Order dated 18.03.2021 in S.O.1248(E) of Ministry of Electronics and Information Technology, Central Government (hereinafter referred to as Order, 2021) issued under Section 25(3) of the Bureau of Indian Standards Act, 2006. ....
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.... Exemption for Highly Specialized Equipment (HSE) For all the product categories notified under the "Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2021", a transition period of three months (max), from the date of coming into effect of the Order for the particular product category, would be available to the representative of the foreign manufacturing unit having liaison office of branch office located in India for affixing Standard Mark at the ports which are already having registration number from the Bureau for clearance of goods from customs HSE as per the criteria given below shall stand exempted from the application of this Order provided they are manufactured/imported in less than 100 units per model per year a. Equipment Powered by three phase power supply or b. Equipment Powered by single phase power supply with current rating exceeding 16 Ampere or c. Equipment with dimensions exceeding 1.5m x 0.8m or d. Equipment with weight exceeding 80 Kg 37. Thus, as far as the Ministry of Communication and Information Technology is concerned there are not only restrictions for manufacturing but also for storage, sale and distr....
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.... as printers and plotters. 42. The Second Hand Multi Function Devices are not governed by the provisions of the aforesaid Order. Although there is no express reference to import or sale or storage of use multi function devices under the Commerce Ministry in the Foreign Trade Policy issued under Section 5 of the Foreign Trade (Development and Regulation Act), 1992, it has been clarified in paragraph 2.31 that import of photo copiers of machine, digital multi functional copying machine is importable only against authorization. 43. Foreign Trade Policy is issued under Section 5 of the Foreign Trade (Development and Regulation Act), 1992. It is issued once in five years. Foreign Trade Policy once issued is to remain in force for a period of five years. 44. A Foreign Trade Policy is subjected to minor amendments every year with effect from 1st of April of each Financial Year. Foreign Trade Policy 2015-2020 was also amended from time to time. It was last amended on 07.05.2019 vide Notification No.5/2015-2020 of the Ministry of Commerce. Thereafter, there was no major amendment. Foreign Trade Policy 2015-2020 was replaced by Foreign Trade Policy 2023 with effect from 01.04.2023. 45. T....
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....Trade Policy reads as under:- "2.10 Actual User Condition Goods which are importable freely without any 'Restriction' may be imported by any person. However, if such imports require an Authorisation, actual user alone may import such good(s) unless actual user condition is specifically dispensed with by DGFT." 50. Paragraph 2.11 deals with Terms and Conditions of an Authorisation. It reads as under:- "2.11 Terms and Conditions of an Authorisation Every Authorisation shall, inter alia, include either all or some of the following terms and conditions (as applicable in terms of the para under which the Authorisation has been issued), in addition to such other conditions as may be specified:- (a) Description, quantity and value of goods; (b) Actual User condition (as defined in Chapter 9); (c) Export Obligation; (d) Minimum Value addition to be achieved; (e) Minimum export/import price; (f) Bank guarantee/ Legal undertaking / Bond with Customs Authority/RA (as in para 2. 35 of FTP). (g) Validity period of import/export as specified in Handbook of Procedures. 51. Paragraph 2.12 of Foreign Trade Policy 2015-2020 deals with Clearance of Goods from Customs against A....
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....) for a particular consignment, as per provisions of Gazette Notification SO No. 3022 dated 11.09.2013. The importer shall re-export such prohibited Goods reaching Customs Ports else the Customs Authorities shall deform the goods beyond use and dispose of the goods as scrap under intimation to MeitY." 56. Paragraph 2.31(1)(a) of Foreign Trade Policy, 2015-2020 was revised to read as under:- S. No Categories of Second Hand Goods Import Policy Conditions, if any I Second Hand Capital Goods (a) 1. Desktop Computers 2. refurbished/reconditioned spares of re-furbished parts of Personal Computers/Laptops. 3. Air conditioners. 4. Diesel generating sets. Restricted Importable against Authorization (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 1. Importable against Authorization subject to conditions laid down under "Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2012, as amended from time to time. 2. Import of unregistered/noncompliant notified products as in CRO, 2012, as amended ....
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....s amended from time to time or on specific exemption letter from Ministry of Electronics and Information Technology (MeitY) for a particular consignment as per provisions of Gazette Notification SO No.3022 dated 11.09.2013." The importer shall re-export such prohibited Goods reaching Customs Ports else the Customs Authorities shall deform the goods beyond use and dispose of the goods as scrap under intimation to MeitY. Thus, there is prohibition for import under the policy. 59. Under the Foreign Trade Policy 2015-2020, that was in force till 19.05.2019, import of second hand Photocopier Machines/Digital Multifunction Print & Copying Machines was prohibited and could be imported only against authorization if it complied with the above requirements. After 19.05.2019, its import is prohibited. 60. Thus, all electronic and IT goods notified under The Electronic and Information Technology Goods (Requirement and Compulsory Registration), Order 2012 became prohibited unless:- i. they are registered with the Bureau of Indian Standards (BIS); and ii. complied with to the 'Labelling Requirements' published by BIS, as amended from time to time', or; iii. on specific exemp....
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....d Capital Goods Restricted Importable against Authorisation I(a) i. Desktop Computers; ii. Refurbished/re-conditioned spares of re-furbished parts of personal Computers/Laptops; iii. Air Conditioners; iv. Diesel generating sets I(b) All eletronics and IT Goods under the Electronics and IT Goods (Requirements 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 IG Goods (Requirements of Compulsory Registration) Order, 2012 as amended from time to time (ii) Import of unregistered/noncompliant notified products as in CRO, 2012 as amended from time to time is "Prohibited" I(c) Refurbished/re-conditioned spares of Capital Goods Free Subject to production of Chartered Engineer certificate to the effect that such spares have at least 80% residual life of original spare I(d) All other second-hand capital goods [other then (a) (b) & (c) above] Free II. Second Hand Goods other than capital goods Restricted Importable against Authorization III. Second Hand Goods imported for the purpose of repair/refurbishing/reconditioning....
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....such prohibition or restriction or obligation is notified under the provisions of the Customs Act, 1962, subject to such exceptions, modifications or adaptations as the Central Government deems fit. 70. If Section 11(3) of the Customs Act, 1962 as amended by Section 59 of Finance Act, 2018 (No.13 of 2018) comes into force for all practical purpose restrictions and prohibitions under the Foreign Trade Policy 2015-2020 issued under the section 5 of the Foreign Trade (Development And Regulation), 1992 and under the Electronic and Information Technology Goods (Requirement of Compulsory Registration) 2012 as notified by Notification dated 07.09.2012 in SO.No.2357(E) and Electronic and Information Technology Goods (Requirement of Compulsory Registration) 2021 as notified by Notification dated 18.3.2021 in S.O 1428 (E) of the Ministry of Electronics and Information Technology will be redundant, unless a corresponding notification was issued under Section 11 (3) of the Customs Act, 1962. 71. The 3 wings of the Central Government have to worked in tandem and issue Notifications to implement the Policy of the Government. The restrictions and prohibitions under any of the other two of the M....