2020 (12) TMI 920 - HC - Customs

Import of Multi Function Devices (MFDs) for use within the country - contravention of the provisions of the Foreign Trade (Development Regulations) Act, 1992 read with the Foreign Trade Policy, Hazardous and Other Waste (Management and Transboundary Movement) Rules, 2016, e-Waste (Management and Handling) Rules, 2011 and Environment (Protection) Act, 1986 - HELD THAT - The goods were released based on Annexure-3. However, in Annexure-3, there was a specific direction to intimate the DGFT about the import not being supported by an import licence from the DGFT, which could lead to confiscation proceedings being initiated under the Foreign Trade Act. It was also directed that a surety bond be executed for the market value of the goods, minus that imposed on the importer as redemption fee by the Commissioner of Customs and modified by the Tribunal. We direct the respondents who have already cleared the goods on the basis of the interim orders to execute such surety bonds within a period of two months from the date of receipt of a certified copy of this judgment failing which the Customs authorities could initiate proceedings for return of goods, the location of which should be in the knowledge of the respondent/importer as per the Extended Producer Responsibility Authorization. Petition disposed off.

Summary

Issues:
Import of Multi Function Devices (MFDs) for use within the country, Compliance with various regulations including Foreign Trade Act, Hazardous and Other Waste (H&OW) Rules, e-Waste Management and Handling Rules, Environment Protection Act, Compliance with Technical Review Committee (TRC) recommendations, Compliance with Bureau of Indian Standards (BIS) specifications.

Analysis:
1. The controversy primarily revolves around the import of Multi Function Devices (MFDs) for domestic use. The Court examined the allegations raised by the Revenue regarding contravention of various regulations such as the Foreign Trade Act, H&OW Rules, e-Waste Rules, and Environment Protection Act. The absence of import license, ambiguity in the country of origin certificate, and compliance with various documentation requirements were key issues addressed in the judgment.

2. The Court found that the ambiguity in the country of origin certificate worked in favor of the importers, as the machines were certified by the Inspection Agency to have a minimum functionality of five years. The judgment clarified that certain documentation like Form-6 and Form-7 were not mandatory for MFDs that were not manufactured within India. The Court also discussed the Extended Producer Responsibility (EPR) authorization under e-Waste Rules and the filing of annual returns with the State Pollution Control Board after the MFDs lose functionality.

3. The judgment also delved into the provisions of the H&OW Rules regarding re-export and the implications under the Foreign Trade Act. It emphasized that redemption in lieu of confiscation is permitted only on payment of market value. The Court upheld its previous findings, which were endorsed by the Supreme Court, indicating that the law applied favorably to the respondent-importers in this case.

4. The additional issues raised by the Revenue focused on the TRC recommendations and compliance with BIS standards. The judgment clarified that TRC recommendations are not statutory in nature, and the TRC's role is limited to resolving disputes related to hazardous waste categorization. Regarding BIS standards, the Court noted the absence of specific standards for MFDs in the relevant order and highlighted the generic product types specified by BIS.

5. The judgment also referenced a notification by the Ministry of Electronics and Information Technology, which effectively prohibited the import of MFDs after its publication. The Court rejected the Revenue's contentions based on the earlier judgment's findings and upheld the decision to dismiss the appeals. It directed the respondents to execute surety bonds within a specified period failing which Customs authorities could initiate proceedings for return of goods.

In conclusion, the judgment provides a detailed analysis of the issues surrounding the import of MFDs, compliance with various regulations, TRC recommendations, BIS standards, and the implications of relevant notifications. The Court's decision was based on a thorough examination of the legal framework and previous judgments, ultimately favoring the respondent-importers in this case.