TaxTMI 
TaxTMI 
2024 (1) TMI 836
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....ated 22.09.2021, (2) STA/IR/O & VC/C-429/2021 - 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 Bi....
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....tional Solicitor General appearing for the respondent(s) at length. On 05.07.2021, this Court had issued notice in these matters. Despite the 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 b....
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....second decision in the case of Matraco (India) Limited v Union of India and others [2003 (5) Mh.L.J.317] learned standing counsel points out, does not specifically refer to and dealt with the provisions of Section 15 of 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 ....
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....ndard IS 13252 : Part 1 : 2010 [Title of Indian Standard - Information Technology Equipment - Safety - General Requirements] 11. The schedule of the "Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012 in S.O.1236(E) was amended. It clarified 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 decisi....
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....such orders have become final. The distinction as to whether the relief of release is sought by way of Mandamus or by way of interim relief in a writ of Declaration is thus, not material. 17. These Writ Petitions are allowed. The consignments in question will be released upon remittance of the enhanced duty as quantified based upon the 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, fo....
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....he Ministry of Commerce and Industry under the provisions of the Foreign Trade (Development and Regulation Act), 1992. 20. By Electronic and Information Technology Goods (Requirements for Compulsory Registration) Order 2012 vide Notification dated 07.09.2012 in S.O.2357(E), manufacture, storage, sale and distribution, etc., of goods as specified in Column 2 to the schedule to the above Order 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 t....
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....ame power, the Central Government viz., the Ministry of Electronics and Information Technology (Department of Electronics and Information Technology) (IPHW Division) notified few other items to the Schedule Notification dated 07.09.2012 vide Notification dated 01.04.2020 in S.O.1236 (E). In paragraph 2 of Notification dated 01.04.2020 in S.O.1236 (E), it was stated as follows:- "Since the Multifunction Devices (MFDs) are basically printers with additional 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.....
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....ice 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. 36. Rule 8 introduced exemption for Highly Specialized Equipments (HSE). The aforesaid amendment dated 01.07.2021 also prescribed the criteria for determining Highly Specialized Equipments. Rule 7 and 8 to Order 2021 as amended vide Notification dated 01.07.2021 in S.O.2844(E) which reads as under:- 7. Labeling at Custom Ports 8. 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 provi....
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....ted 11.08.2021 Standard prescribed is applicable only for imports of new goods specified in the schedule or manufacture of the goods specified in the schedule. It does not deal with import of Second Hand Goods. Exemption under Rule 8 of Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2021 is for Highly Specialized Equipment (HSE). It is applicable only to Highly Specialized Equipment (HSE) as defined therein. However, it will apply only to new unused goods and not to second use multi function device such 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), 199....
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....e; (f) Conservation of exhaustible natural resources; (g) Protection of trade of fissionable material or material from which they are derived; (h) Prevention of traffic in arms, ammunition and implements of war (i) Relating to the importation or exportation of gold or silver." 49. As per Paragraph 2.10 of the Foreign Trade Policy (2015-2020), goods which are importable freely without any 'Restriction' may be imported by any person. However, if such imports require an Authorization, imports are permissible only on actual user condition unless it is specifically dispensed with by DGFT. Paragraph 2.10 of the Foreign 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, inc....
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....ished/reconditioned spares of refurbished parts of personal computers/laptops". 55. In Notification No.5/2015-2020 dated 07.05.2019, it was also clarified as under:- "Policy Condition: As under Chapter 84 and 85 of ITC (HS) 2017: The import of Goods (new as well as second hand, whether or not refurbished, repaired or reconditioned) notified under the "Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2012, as amended from time to time, is prohibited unless they are registered with the Bureau of Indian Standards (BIS) and comply to the 'Labelling Requirements' published by BIS, as 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." 56. Paragraph 2.31(1)(a) of Foreign Trade Policy, 2015-2020 was revised to read as under:- S. No ....
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.... a particular consignment as per provisions of Gazette Notification SO No.3022 dated 11.09.2013. Accordingly, import of unregistered/non-compliant notified products as in CRO 2012 as amended as "prohibited" Import consignments without valid registration with BIS shall be re-exported by the importer failing which Customs shall deform the goods and dispose them as scrap under intimation to Meity (C)Import policy for Electronics and IT Goods: The import of Goods (new as well as second hand, whether or not refurbished, repaired or reconditioned) notified under the "Electronics and information Technology Goods (Requirement of Compulsory Registration) Order 2012 as amended from time to time is prohibited unless they are registered with the Bureau of Indian Standards (BIS) and comply to the Labelling Requirements published by BIS, as 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 ....
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.... Functional Devices including printers are prohibited and were importable only against authorization subject to the condition laid down in the aforesaid Ministry of Electronics and Information Technology from 19.05.2019. The position under Paragraph 2.13 of the New Policy with effect from 01.04.2023 is not different. Under it, imports are restricted wherever an importer complies with the requirement of All Electronic and IT Goods notified under the Electronic and IT Goods (Requirements of Compulsory Registration), 2012. Imports are prohibited in case of import of unregistered/non-compliant notified products as in CRO, 2012, as amended from time to time is "prohibited". 66. Paragraph 2.31 to Hand Book of Procedure to the Foreign Trade Policy, 2023 notified on 31.03.2023 reads as under:- Sl. No. Categories of Second Hand Goods Import Policy Conditions, if any I. Second Hand 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 a....
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....ed with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, namely:- (3) Any prohibition or restriction or obligation relating to import or export of any goods or class of goods or clearance thereof provided in any other law for the time being in force, or any rule or regulation made or any order or notification issued thereunder, shall be executed under the provisions of that Act only if such prohibition or restriction or obligation is notified under the provisions of this Act, subject to such exceptions, modifications or adaptations as the Central Government deems fit.". 69. Thus, there is a drift that any prohibition or restriction or obligation relating to import or export of any goods or class of goods or clearance thereof provided in any other law for the time being in force, or any rule or regulation made or any order or notification issued thereunder, shall be executed under the provisions of that Act only, if 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.....