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2019 (5) TMI 169 - HC - CustomsImport of restricted item - Old and Used Digital Multifunction Print and Copying Machines - requirement of production of authorisation/import licence issued by the DGFT authorities or any other notification or clarification issued by the DGFT - HELD THAT:- The goods imported by the respondent/writ petitioner are second hand machinery. In terms of the policy guidelines issued by the DGFT, authorisation/import licence ought to have been obtained, as the goods are restricted for import in terms of Para 2.31 of the Foreign Trade Policy 2015-20. The respondent/writ petitioner was fully aware of the fact and that an import licence and appropriate BIS clearance certificate under the relevant order is a prerequisite and having been well acquainted with the legal position, they have applied for grant of such licence which was either rejected or not entertained or kept pending without orders. In such a factual position, we would be fully justified in holding that the appellant can insist upon orders for provisional release of the imported goods by raising a plea that the provisions of the Foreign Trade Policy and the various notification and orders are not sustainable or inapplicable to the goods imported by them. Whether Section 110A of the Customs Act could be invoked by the respondent/writ petitioner? - HELD THAT:- Prerequisite for Section 110A to be attracted is seizure of the goods under Section 110 and in terms of sub-Section (1) of Section 110, if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods. Admittedly, till date, the goods have not been seized. The respondents do not dispute the said factual position. This is more so because, the goods have been warehoused in terms of Section 49 of the Act - Proviso to Section 49 states that the Principal Commissioner of Customs or Commissioner of Customs may extend the period of storage for a further period not exceeding thirty days at a time. This warehousing is done on the application made by the respondents/importer requesting time for production of requisite documents and the Assistant Commissioner of Customs being satisfied that the goods cannot be cleared within the reasonable time, pending clearance, has permitted the goods to be stored in a warehouse. Thus, in the absence of seizure, the provision of Section 110A would be inapplicable. The respondent would not be entitled to make a prayer for provisional clearance, as there is non compliance of the vital requirement regarding BIS certificate as required under Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order 2012 dated 07.09.2012 and subsequent orders dated 25.06.2013 and 07.11.2014 issued by MeitY. Appeal allowed - decided in favor of Revenue.
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