TaxTMI 
TaxTMI 
2025 (7) TMI 1350
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....43 OF 2025,WP NO. 7740 OF 2025 Hon'ble Mr Justice Abdul Quddhose W.P. No. : W.P.Nos.39162, 39183 & 37138/24 and 5502 & 2343 of 2025 For the Petitioner : Mr.S.R.Rajagopal, Sr.Counsel, for Mr.Akash Srinanda For the Respondents : Mr.A.P.Srinivas, SPC, for customs department in W.P.No.39162/24; Ms.Pooja Jain, JPC in W.P.No.5502/25; Mr.T.Ramesh Kutty, JPC, Assisted by Mr.B.Sivaraman, JPC in W.P.No.2343/25; Mr.Rajinish Pathiyil, SPC, Mr.K.Srinivasamurthy, SPC, for R4 to R7 in W.P.No.37138/24 W.P.Nos.26026/24, 39185/24, 5507/25, 5517/25 & 7740/25 & 2255/25 For the Petitioner : Mr.Vijay Narayanan, Sr.Counsel, for Mr.Vaibhav R.Venkatesh For the Respondents : Mr.T.Nalindhar, JSC in W.P.No.26026/24; Mr.R.Sidharth in W.P.No.39185/24; Mrs.Revathi Manivannan, SPC, in W.P.Nos.5507 & 5517/25; Mr.S.M.Deenadayalan, SPC, in W.P.No.2255/25 W.P.Nos.34240, 29418 & 37141 of 2024; and 7734, 7736 and 7739 of 2025 For the Petitioner : Mr.Nithyaesh Natraj for Mr.Anirudh A.Sriram For the Respondents : Mr.T.Nalindhar, JSC, in W.P.No.34240/24; Mr.Mohanamurali, SPC, in W.P.Nos.29418 & 7734/25 Mr.Rajinish Pathiyil, SPC, Mr.K.Srinivasamurthy, SPC, for R4 to R7, in W.P.No.37141/24 ....
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....ull value of the goods or provide a bank guarantee or security deposit to cover the potential duty, fines and penalties, that may be imposed later. A decision to grant provisional release including imposing specific conditions is the discretion vested with the adjudicating authority (customs officer concerned). By allowing the provisional release, the customs authorities can focus on the investigation and the importer can resume their business operation. While facilitating trade, the conditions for provisional release (bond and bank guarantee) ensure that goods are not misused and that the revenue is protected. 5. Mr.Vijay Narayanan, learned Senior counsel appearing for some of the writ petitioners, drew the attention of this Court to the following authorities:- a) The order passed by a learned Single Judge of this Court in W.P.No.29673 of 2023 etc. (batch), dated 23.11.2023; b) The order passed by a Division Bench of the Telangana High Court in W.P.No.2014 of 2024, dated 08.02.2024; c) The order passed by a learned Single Judge of the Madras High Court dated 24.05.2024 in W.P.No.11950 of 2024 batch; and d) The order passed by the Honourable S....
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....nion of India and Others reported in 1982 SCC Online Bom 364, rendered by a Division Bench of the Bombay High Court. 11. Relying upon the aforesaid authorities, Mr.S.R.Rajagopal, learned Senior counsel, reiterated that ordinarily, if a High Court has interpreted a provision of taxing/revenue statute, which is an all India statute, and there is no other view in the field, another High Court must ordinarily accept that view in the matter of application of taxing/revenue statute so as to avoid the challenge of discrimination in application and administration of tax matters. He would further submit that if there is no uniformity between States, it would lead to discrimination amongst the same class of importers as the importers may import the subject goods from the State where it has been held that goods are freely importable in view of the decision rendered by a particular High Court. He would further submit that since the very same goods have been held to be freely importable both by the Madras High Court through its previous decisions as well as by Telangana High Court, which has been upheld by the Hon'ble Supreme Court, the question of revisiting the said issue once again by....
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....ranted provisional release of the imported goods. They have also stated that since the imported goods have been imported without compliance of BIS registration, goods appear to be restricted, in view of Clause 2.31(I)(b) of the Foreign Trade Policy, 2023. DISCUSSION:- 16. The following are the undisputed facts:- (a) Earlier, MFDs were held to be freely importable both by this Court as well as the Telangana High Court through various decisions only after considering CRO, 2012; CRO, 2021; and subsequent amendment notification dated 01.07.2021 issued by MEITY. (b) The order passed by the Telangana High Court granting provisional release of MFDs was challenged by the Customs Department before the Hon'ble Supreme Court and the Hon'ble Supreme Court also upheld the order of the Telangana High Court by granting provisional release as per the provisions of Section 110A of the Act. (c) MEITY as well as the Ministry of Environment, Forest and Climate Change did not intervene in the earlier writ petitions pertaining to the very same goods, namely, MFDs, both before this Court as well as before the Telangana High Court. Neither the Customs Department no....
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.... an admitted fact that Telangana High Court has also held that MFDs fall under the category of HSE and therefore, they are freely importable. The Hon'ble Supreme Court has also upheld the decision of the Telangana High Court and has permitted provisional release of the MFDs under Section 110A of the Act. 19. All the respective petitioners have submitted the report of the Chartered Engineer dated 04.09.2024. As seen from the Chartered Engineer's report, all the respective petitioners have satisfied Clause 8 of CRO, 2021. In the said report, the Chartered Engineer has given a finding that all the machines imported by the respective petitioners were individually weighed and found the weight of individual machines to exceed 80 kgs. Therefore, the petitioners have satisfied that MFDs imported by them are weighing more than 80 kgs. and they are exempted from the application of CRO, 2021, since they have fulfilled the twin criteria as envisaged in Clause 8 of CRO, 2021, dated 01.07.2021. 20. It is also to be noted that in a recent order passed by the Telangana High Court in W.P.No.11714 of 2025, dated 17.04.2025, which was placed on record by Mr.S.R.Rajagopal, learned Senior....
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....ctive petitioners have not made a formal application for release of the goods provisionally under Section 110A of the Act is not sustainable. 23. The learned senior standing counsels for the Customs Department also relied upon Sl.No.I(b) of Para 2.31 of the FTP, 2023, which requires prior authorisation of DGFT for import of MFDs. According to him, since the respective petitioners have not obtained prior authorisation from DGFT, provisional release of the goods cannot be granted. This Court, in its order dated 23.11.2023 passed in W.P.Nos.29673 of 2023 etc. (batch), while considering the very same issue as to whether prior authorisation from DGFT is required, has held in para 15 that as per FTP, 2023, the petitioners' goods therein would not fall under the category of I(b), but, it falls under the category of I(d), which indicates that other than the goods mentioned in I(a), I(b), I(c), all other second-hand capital goods can be imported freely without any restriction. Paragraph No.15 thereof is extracted hereunder:- 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, the....
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.... of CRO, 2021. The said order of the Telangana High Court was also upheld by the Hon'ble Supreme Court, which has also permitted provisional release of MFDs. 25. Notification No.13/2024-25, dated 20.05.2024, issued by the Ministry of Commerce & Industry, Government of India, amending para 2.31 of the FTP, 2023, shall not apply to the case of the petitioners. A single Judge of this Court, vide order dated 24.05.2024 passed in W.P.Nos.11950 of 2024 etc.(batch), has already considered the effect of the said amendment notification and held that the same would have no bearing on the issue of provisional release. The said order of the learned Single Judge has also attained finality as no appeal has been filed. 26. The learned senior standing counsel appearing for the respective Ministries, Government of India, would point out that in the order of the Hon'ble Supreme Court, the question of law, which is being raised in these writ petitions by the respective Ministries, was kept open for being considered in an appropriate case. Therefore, the respective Ministries have a right to object to the provisional release of the goods on hand. Article 141 of the Constitution of India ....
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....Ds are freely importable, the respondents are now estopped from raising objections in these writ petitions, that too, when the Hon'ble Supreme Court has issued directions permitting provisional release of similar goods as per the provisions of Section 110A of the Act. 29. A plea has also been taken by the Ministry of Environment, Forest and Climate Change that MFDs will fall under "other wastes" as defined under Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (in short "HOW Rules"), that was framed by the Ministry of Environment, Forest and Climate Change in 2016, and therefore, MFDs are restricted items, which require prior permission from the Ministry of Environment, Forest and Climate Change. The said Rules will not affect the provisional release of the MFDs which have been sought in these writ petitions for the following reasons:- (a) Rule 3(23) of the HOW Rules has defined "other wastes", as per which, the wastes specified in Part B and D of Schedule III for import or export would include all such wastes generated indigenously within the country. (b) Rule 13(2) of the HOW Rules also states that for the import of other was....
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....hat they are exempted from the application of CRO, 2021, and the subsequent amended notifications. Their claim is also, on a prima-facie consideration, supported by the earlier decisions rendered by this Court and also by the decision of the Telangana High Court, which has been upheld by the Hon'ble Supreme Court, which has permitted provisional release of MFDs for other importers. A finding has also been rendered by the Telangana High Court that MFDs fall under the category of HSEs and they are freely importable. Though the respondents may contend that MFDs are not freely importable and are restricted items or have been prohibited items, the same cannot be conclusively established with the available materials at the stage of granting provisional release. Further, the goods in question are not contraband items or items which affects security of India, like, explosives, etc. Therefore, by applying the benefit of doubt principle as well, this Court will have to give the benefit of doubt to the importer at this stage, as the respondents (customs department) do have the power to reverse the provisional release order at a later date through its final adjudication order. Therefore, i....