TaxTMI 
TaxTMI 
2025 (8) TMI 1014
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....as been seized. 4. In effect, the challenge in the present petitions is to the seizure of the Petitioner's multi-functional device/ multi-functional printer and photocopier machine without assigning reasons for the same. In fact, Mr. Priyadarshi Manish, ld. Counsel for the Petitioner points out that the seizure memo itself does not mention as to what is the violation by the Petitioner. 5. The Petitioner prays for release of goods in W.P.(C) 5543/2025 in the following terms:- "(a) Issue a writ of certiorari or any appropriate writ, order or directions to the Respondents to set-aside the seizure memo dated 02.01.2025 vide which the goods imported against Bill of Entry No. 5518018 dated 10.09.2024, has been seized; and/or (b) Issue a writ of certiorari or any appropriate writ, order or directions to the Respondents to release the seized imported goods against Bill of Entry No. 5518018 dated 10.09.2024unconditionally; and/or (c) Issue a writ of mandamus to direct the respondent to issue the detention certificate for waiver of the damages and detention charges from the date of detention to till the date of release of the consignment; and (d) Pas....
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....been rejected on the ground that the goods in question being multi-functional devices are prohibited unless the importer has a Bureau of Indian Standards (hereinafter, 'BIS') registration or specific exemption from the Ministry of Electronics and Information Technology. 9. The Customs Department have refused provisional release by applying Circular No. 35/2017-Customs dated 16th August, 2017 (hereinafter, 'circular') in the following terms:- "10.5 In view of the above, I am of the considered opinion that the imported goods are prohibited and liable for confiscation in the light of the Customs Act, 1962 and other allied Acts as discussed supra subsequently attracting penal provisions on the importer under Act ibid. 10.6 This attempt to import these goods into India renders the goods liable for confiscation under section 111(d) of the Customs Act, 1962. Further, the importer also appears to be liable for Penalty under section 112(a)(i) of the Customs Act, 1962. Since, the matter is pending for Adjudication, decision regarding the above provisions will be made by the competent authority in due course. 10.7 I also have carefully considered the request of t....
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....s Impex v. Union of India and Ors., (2024) 15 Centax 129 (Del.). Ld. Counsel for the Petitioner further submits that these multi-functional devices are imported across the country and various Courts have permitted provisional release on reasonable terms and conditions. 11. On the other hand, Mr. Piyush Beriwal, ld. SPC for the Respondents submits that the Petitioner has not come with clean hands and ought to have disclosed the earlier writ petition i.e. W.P.(C)-5543/2025 which has been filed by the Petitioner in the new petition. In addition, it is submitted that since the devices are not BIS stamped and the same being prohibited goods, are not liable to be released at all. 12. Ld. SPC for the Respondent also relies upon Section 46(4A) of the Customs Act, 1962 as also the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 to argue that the goods are prohibited and hence, are also not liable to be released. 13. The Court has considered the matter. Section 110A of the Customs Act, 1962 reads as under:- "[110A. Provisional release of goods, documents and things seized pending adjudication.-Any goods, documents or things seized under sectio....
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....e, that we refer to the "eligibility" of the goods for provisional release, as distinct from the "entitlement" thereof, which has to be determined by the adjudicating authority in exercise of the discretion conferred on her, or him, by Section 110A.) Para 2 of Circular 35/2017-Cus, therefore, effectively seeks to 29 Lok Prahari v State of U.P., (2016) 8 SCC 389, which digests several earlier decisions. supplant Section 110A, to that extent, and has, therefore, to be regarded as void and unenforceable at law." 15. The said judgment has also been followed by a Coordinate Bench of this Court in Shanus Impex (supra) wherein the Court has observed as under: "5. Mr. Harpreet Singh, learned senior standing counsel appearing for the respondents submit that the challenge to paragraph 2 of the impugned Circular is covered by the decision of Additional Director General (Adjudication) v. M/s Its My Name Pvt. Ltd. (supra). He submits that the impugned order be set aside and the matter be remanded to respondent no. 6 to decide afresh. 6. In view of the above, the present petition is allowed. 7. Paragraph 2 of the impugned Circular to the extent it curtails the discr....
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....& 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. (b) For payment of such duty, quantification shall be made by the Customs forthwith within one (1) week from the date of receipt of a copy of this order. On receipt of such quantification, the payment shall be immediately made by the petitioners and on receipt of the payment in entirety, the goods shall be released as indicated above at the outer limit of three (3) weeks. (c) It is made clear that this order will not stand in the way for Customs Department to go ahead with the further proceedings including the adjudication in the manner known to law. (d) It is further made clear that in the earlier interim order passed in a related writ petitions by an another Division Bench of this Court, that demurrage charges til....