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TMI Blog2024 (4) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... e w.e.f 18.03.2021 and the schedule attached to Order, 2021 stood modified to the extent that in addition to printers and plotters the Government also notified multi-functional devices as an item so far as the foreign trade policy is concerned. This change in Order, 2021 so far as adding multi-functional devices in the schedule makes it amply clear that prior to Order, 2021 MFDs were not a notified item and since 18.03.2021 when the Order, 2021 was notified, MFDs became restricted goods under the foreign trade policy. Though the learned Senior Standing Counsel for CBIC tried to give various interpretations to this clause, but on its plain reading, has its literal meaning and with the literal interpretation of the contents of clause 8, there does not seem to be any restrictions put by the Government so far as the classifications of highly specialized equipment is concerned. There also does not seem to be any mention of the said exemption not being applicable upon a second hand product as is envisaged under clause 2.31 of the foreign trade policy. Thus, we are in agreement to the submissions made by the learned counsel for the petitioner so far as the import made by the petitioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant for disposal of the two writ petitions are that the petitioners in both these writ petitions are traders in the business of importing and sale of printing, photocopying and scanning machines. As a part of the business, the petitioners also import and sale multi-functional devices used for printing, photocopying and scanning etc. In the course of trading, the petitioners purchased few MFDs from their supplier situated in foreign countries of UAE and Singapore respectively and proceeded to import them. When the product reached its intended place of final delivery, the petitioners filed a bill of entry before the respondent authorities. However, the respondent authorities did not allow clearance of the above referred consignment imported by the petitioners. 4. The contention of the learned Senior Standing Counsel for CBIC was that the goods have been imported without any authorization/license and that the aforesaid goods fall under the restricted goods under the foreign trade policy of the Government. 5. The seizure of these goods in the two writ petitions is on 04.11.2023 and 08.11.2023 respectively and the memos were also issued. The petitioners have moved their respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been imported without proper authorization/license from the authorities concerned, they are liable to be confiscated and if the goods are provisionally released at this juncture, the same can cause irreparable loss to the Department as also to the Government. 10. Learned Senior Standing Counsel for CBIC contended that there are various aspects which have to be checked, verified, scrutinized and enquired into before passing of a final order of confiscation. It was further contended that the authorities are required to check whether the product imported is one which would otherwise fall within the category of an e-waste or not, whether the product is one which meets all the criteria in which it may fall within the ambit of a multi-functional device or for that matter a highly specialized equipment. 11. The contention of the learned Senior Standing Counsel for CBIC was that in terms of paragraph 2.31 of the foreign trade policy, the product is one which is ordered to be treated as a restricted product and which could be imported only against an authorization, subject to the conditions laid down under the aforementioned Order, 2012, which stands amended from time to time. Such an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption from BIS. 15. It was also the contention that since the impugned goods are specifically listed in the schedule of Order, 2021, the goods do not merit classification as highly specialized goods and hence, the exemption does not apply. 16. Lastly, it was contended that the petitioner will be given every opportunity to represent his case before the Customs authorities to explain the technicalities and other aspects of the product in the adjudication proceedings to be taken up under Section 28 of the Customs Act, 1962 (for short, the Act ). This being the case, approaching the High Court at this juncture is clearly a misuse of process of law. 17. Having heard the contentions put forth on either side and on perusal of records, it would be relevant at this juncture to take note of the operation of foreign trade policy relied upon by the respondents so far as their contention of MFDs being a restricted good, which reads as under: Import Policy for Second Hand Goods: 2.31 Second Hand Goods Sl.No. Categories of Second-Hand Goods Import Policy Conditions, if any I. Second Hand Capital Goods I(a) i. Desktop Computers, ii. Refurbished/re-conditioned spares of re-furbished parts of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court on 09.11.2020 while admitting the writ petition, directed the respondents to provisionally release the petitioner s consignment of MFDs without insisting for authorization/license as contended by the Department. 19. Recently, in two set of writ petitions, first being W.P. No. 29673 of 2023 and batch in the case of M/s. Simple Machines v. The Commissioner of Customs and Others vide order dated 23.11.2023, the Madras High Court relying upon an earlier decision of Madras High Court in W.P. No. 1393 of 2022 in paragraph Nos. 20 and 21 have held as under: 20. In the aforesaid circumstances, this Court is of the view that the petitioners are in a better position than the petitioners before the Supreme Court and the learned Single Judge. In view of the above findings, this Court does not find any impediment for the respondents to release the goods provisionally. 21. The other contention of respondents that the petitioners, without availing the appeal remedy, have straight away approached this Court is concerned, this Court finds that the goods were imported by the petitioners on 19.07.2023 and the department has not passed any order till date, which itself shows that the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which reads as under: 8. Exemption for Highly Specialized Equipment (HSE) : 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 yeara. 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 1.5 m 0.8 m or d. Equipment with weight exceeding 8-Kg 23. From plain reading of the aforesaid clauses, what is culled out is that by amendment brought into w.e.f 01.07.2021, prima facie, there appears to be a total exemption for highly specialized equipments from applicability of the Order, 2021. Only rider was that these highly specialized equipments must fall within any of those criteria as envisaged in clause 8. Though the learned Senior Standing Counsel for CBIC tried to give various interpretations to this clause, but on its plain reading, has its literal meaning and with the literal interpretation of the contents of clause 8, there does not seem to be any restrictions put by the Government so far as the classifications of highly specialized equip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h within one (01) 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 four (04) 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 so far as the condition of the petitioner that demmurage charges till date, for the goods be considered for waiver, in this regard, if any application is filed by the petitioners seeking such a waiver of demmurage charges, the same shall be considered and decided by the respondents objectively. 27. In addition, the petitioners are also directed to provide a bank guarantee worth 10 percent of the total price of the goods imported by them. Further, it is also ordered that in the event if the petitioners upon release of the goods provisionally make and sell the supply to their customers, details of the customers that of relevant price and details of the respective transactions shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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