TMI Blog2012 (4) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... in question, the customs authorities concerned shall direct the inspection of such goods before they are released. Such goods may be directed to be released, on payment of the appropriate customs duty and on the fulfillment of the conditions prescribed by law - writ petitions of assessee allowed. - W.P.Nos.21732 to 21733, 21985 to 21988, 22081, 26681, 6682, 26837, 27187, 27188, 27946 of 2011 and W.P.Nos.429, 434, 435, 436, 570, 578, 866, 2182, 2196 of 2012 - - - Dated:- 27-2-2012 - MR.JUSTICE M.JAICHANDREN, J. For petitioners: Mr.R.Thiagarajan Senior Advocate for MR.N.Viswanathan, Mr.P.Jagadeesan For respondents: Mr.K.Ravi Anantha Padmanabhan, M/s.Reeta Chandrasekaran, Mr.S.Udayakumar, Mr.K.Ravi Anantha Padmanabhan Ms.P.Bhuvaneswari, M/s.Reeta Chandrasekaran, Mr.S.Udayakumar COMMON ORDER Heard the learned counsels for the petitioners and the learned counsels appearing for the respondents. 2. It has been stated that the petitioners had imported second hand Digital Multifunction Print and Copying Machines, imported under the various Bills of Entry. However, the customs officers concerned, the respondents herein, had detained the goods in question, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such machines in the ITC (HS) classifications of Export and Import Items, by the Directorate General of Foreign Trade, Ministry of Commerce and Industry, Department of Commerce. The Supreme Court had also held that the second hand Photo Copiers are capital goods and therefore, they are freely importable into India. Thereafter, the Ministry of Commerce had accepted the goods as second hand capital goods. However, certain restrictions had been imposed on the import of the old and used Photo Copiers, by way of a notification, bearing No.31/2005 RE, dated 19.10.2005, by amending paragraph 2.17 of the Foreign Trade Policy. However, the second hand Digital Multifunction Print and Copying Machines had been classified differently, as such machines were distinct and different in nature. 8. It had been further stated that the customs authorities concerned, while assessing the second hand Digital Multifunction Print and Copying Machines, under sub-heading 8441 3100 of the Customs Tariff Act, 1975, had, invariably, enhanced the value of the goods, for the purpose of assessment, by engaging the services of approved chartered engineers, while rejecting the true and correct value of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious hardship and financial loss to the importers of the goods in question. The petitioners are also incurring heavy financial loses due to the payment of the detention and demurrage charges, in respect of the goods in question. In such circumstances, the petitioners have preferred the above writ petitions, before this Court, under Article 226 of the Constitution of India. 12. In the counter affidavits filed on behalf of the respondents, the averments and allegations made by the petitioners, in the affidavits filed in support of the writ petitions, have been denied. It has been stated that the petitioners had not complied with the necessary requirements for the examination and the assessment of the goods in question. It has been further stated that, on 4.7.2011, the Central Board of Excise and Customs had issued a circular, bearing Circular No.27/2011-Cus, making it mandatory for all the Commissionerates to examine the imported old and used second hand Digital Multifunction Print and Copying Machines, in view of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. Therefore, even assuming that no import licence is required at present, for importing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities concerned, including the report of the chartered engineer, for the purpose of adjudication. Since, the petitioners had not taken sufficient steps to get their goods examined for the purpose of adjudication and for the levying of customs duties, and for their release, the respondents cannot be held responsible for the alleged loss said to have been caused to the petitioners, by way of detention and demurrage charges. As such, the writ petitions, filed by the petitioners, are devoid of merits and therefore, they are liable to be dismissed. 15. The learned counsels appearing on behalf of the petitioners had submitted that the goods imported by the petitioners, namely, old and used second hand Digital Multifunction Print and Copying Machines cannot be termed as `Waste' or as `Hazardous Waste', as alleged by the customs authorities concerned. They are second hand capital goods. From the Inspection Report submitted by the Inspectorate Griffith India Pvt. Ltd., it is clear that the goods imported by the petitioners cannot be classified as `Hazardous Waste', as they have been found to be functional for a period of nearly five years. Further, they cannot be classified a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on had not been examined, by a chartered engineer, as the petitioner had not taken sufficient steps to examine the goods and to submit the examination report, to the Assessing Officer, to enable him to proceed with the further processing of the matter. 19. It has been further stated that the approved chartered engineers, namely, M/s.S.G.S. India private limited, had been debarred by the Department, from examining the goods, on account of their misconduct, after a detailed enquiry had been conducted. The said information had been passed on to the traders, by way of a public notice No.59/2011, dated 29.7.2011. Even thereafter, after obtaining the approval from the Additional Commissioner of Customs, the petitioners had not chosen to take any steps to examine the goods in question. 20. It has been further stated that, on 4.7.2011, the Central Board of Excise and Customs had issued a circular, in Circular No.27/2011-Cus, making it mandatory to all the Commissionerates to examine the imported old and used Digital Multifunction Print and Copying Machines, in the light of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. Even assuming that no impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Section 111 of the Customs Act, 1962. Further, the goods in question cannot be termed as Electrical or Electronic Assemblies falling under Basel No.B110 part B of schedule 3 of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. In fact, the Electrical and Electronic Assemblies may form a part of certain machines, instruments or equipments. However, they cannot be equated with the Digital Multifunction Print and Copying Machines, which have been imported by the petitioners. Electrical and electronic parts cannot function by themselves, as a unit. They may only constitute a component or a part of full-fledged machines or equipments. 24. In view of the submissions made by the learned counsels appearing for the petitioners, as well as the respondents, and on a perusal of the records available, this Court is of the considered view that the used Digital Multifunction Print and Copying Machines, imported by the petitioners, cannot be said to fall under the category of `Hazardous Waste', as per Rule 3(1)(iii) of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, read with Basel No.B 1110 of part B of schedule II ..... X X X X Extracts X X X X X X X X Extracts X X X X
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