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TMI Blog2013 (4) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in the business of importing and selling of Digital Multifunction and Copying Machine as well as second hand used photocopier machines, besides trading in accessories, parts and consumables for the aforesaid machines. The facts in each of the appeals are similar and hence, it is suffice to refer to the general contentions taken, which are common in all these writ appeals. 3. The imports made in respect of all these cases fall for consideration under the Foreign Trade Policy 2009-2014. The writ petitioners/respondents herein sought for a Writ of Mandamus to direct the Commissioner of Customs and the Additional Commissioner of Customs (Imports) to assess and permit clearance of used second hand digital multifunction print and copying machines, forming the subject matter under the respective Bills of Entry, upon the payment of applicable duties of customs on the assessable value as determined by the Chartered Engineer by holding that the restriction imposed under Notification No.I(RE-2012)2009-14 dated 05.06.2012 by the Director General of Foreign Trade against Para 2.17 of the Foreign Trade Policy read with Clause 2.33 of the Handbook of Procedures (Vol-1) issued by the Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Policy is closely integrated to Foreign Trade Policy and hence, part of indirect taxation, as held in the decision reported in 2010 (253) ELT 203 (Sarla Performance Fibres Vs. The Commissioner of Central Excise). 8. He submitted that as held by the Bombay High Court in the decision reported in 2003 (41) SCL 121 (Narendra Udeshiv Vs. Union of India), in the event of any conflict between the Foreign Trade Policy and Hand Book of Procedures, the Foreign Trade Policy will prevail. Since as per Para 2.7 of the Foreign Trade Policy, restricted goods could be imported only subject to the conditions prescribed therein, the subject goods being one of second hand restricted goods, the import has to observe the provisions under Para 2.7 read with Para 2.17 of the Foreign Trade Policy. As held by the Apex Court in the decision reported in AIR 2003 SC 3581 (Om Prakash Bhatia Vs. Commissioner of Customs, Delhi), being prohibited goods, they cannot be imported freely. Learned Assistant Solicitor General appearing for the appellants also placed reliance on the decision reported in (2009) 5 SCC 46 (Atul Commodities (P) Ltd. Vs. Commissioner of Customs, Cochin) and submitted that considering the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, the Central Government may direct that any power exercisable by it under the Act may also be exercised by the Director General of Foreign Trade. Sub Section (3) further states that such power may be directed to be exercised by such other Officer subordinate to the Director General of Foreign Trade. In terms of Section 5, evidently, the Foreign Trade Policy 2009-2014 was formulated, which came into force with effect from 5th June 2012. 13. As per Notification No.1 (RE-2012)/2009-2014 dated 05.06.2012 issued by the Director General of Foreign Trade and Additional Secretary to the Government of India, the revised edition of the Foreign Trade Policy for 2009- 2014 was formulated, incorporating the changes upto 05.06.2012. As per Chapter 1A Clause 1.3, in exercise of the powers conferred under Section 5 of the Act, the Central Government has the right to make any amendment in public interest by way of notification to the Policy. 14. Chapter 2 - "General provisions regarding imports and exports", makes provisions relating to the import of goods freely, unless regulated, prohibition on import and export of various goods, interpretation of policy, procedure, exemption from policy/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) Diesel generating sets (b) Free Category: (i) Refurbished / re-conditioned spares of Capital Goods Free Subject to conditions specified in para 2.33 of HBPv1 (ii) All other second hand capital goods Free (iii) All other Second Hand Goods Restricted 18. A reading of Para 2.7 of the Foreign Trade Policy makes it clear that restricted goods can be imported or exported only in accordance with an authorisation/confirmation or licence or in accordance with the procedure prescribed in the notification / public notice issued in this regard. That means, import or export of restricted second hand capital goods must comply with any one of those enumerated circumstances. The said Para does make the compliance of all those conditions as a cumulative one. Para 2.17 gives the import policy regime as regards second hand capital goods, in particular, with reference to two categories falling under the Head "Second Hand Capital Goods" - "restricted category" and "free category". 19. As already seen from the extract of the provision, under the head, "restricted category", we have (i) Personal computers/ laptops, (ii) Photocopier machines / D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l alone and is not a separate para to deal exclusively with second hand capital goods falling under restricted category. Thus, dealing with the procedure on the import of second hand capital goods, it specifically refers to some of those restricted items of second hand capital goods, namely, personal computers/ laptops, which could be imported only subject to the conditions specified in the para. Thus, while Clause 2.33 allows free import of second hand capital goods, including refurbished/reconditioned spares as per sub clause (a) of Clause 2.33, one can say from the clear terms of the provision that there is no distinction made between second hand capital goods and second hand refurbished/reconditioned capital goods for purposes of free import. Except for those specifically mentioned restricted category of second hand capital goods which are not allowed free import, all other second hand capital goods including other enumerated restricted category of second hand capital goods are permitted free import. Thus, with no distinction maintained between other restricted category of second hand capital goods and second hand capital free goods, we do not find any good ground to read in Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions under which the import policy regime is laid, in the absence of any other restriction specified anywhere either in the policy or in the Hand Book of Procedures (Vol.1) with reference to any of those specified restricted category of second hand capital goods - photocopier machines and digital multifunction printing and copying machines as falling in line with personal computers and laptops, the mere instance of photocopier and digital multifunction printing and copying machines being restricted category of second hand capital goods, cannot bring them under any assumed restriction on par with personal computers/laptops for the purpose of imports into this country. Contrary to the assertion of the Revenue, the import policy regime, as spoken to in Para 2.17, touches on compliance of conditions alternative and not on cumulative basis. In the circumstances, we reject the plea of the revenue. 23. It is no doubt true that in exercise of the powers conferred under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, read with paragraph 2.1 of the Foreign Trade Policy, 2009-2014, under Notification No.35 (RE02012)/ 2009-2014 dated 28.02.2013, the Government had amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or compliance by an importer as spoken to in Para 2.17 of the policy, we have no hesitation in dismissing the appeal filed by the Director General of Foreign Trade. 25. As far as the decision reported in (2009) 5 SCC 46 (Atul Commodities (P) Ltd. Vs. Commissioner of Customs, Cochin) relied on by the learned Assistant Solicitor General appearing for the appellants is concerned, the decision is distinguishable from the case on hand. There is no dispute over the fact that the import of goods by the respondents herein fall under the restricted category. Yet, the applicability of the decision reported in (2009) 5 SCC 46 (Atul Commodities (P) Ltd. Vs. Commissioner of Customs, Cochin) has to be seen in the context of the Foreign Trade Policy. A reading of the decision shows that the notification was with reference to the exemption given for the period period 2002-2007, whereas, the case on hand is covered by the policy relating to the period 2009-2014. Hence, the question of applying the decision rendered with reference to the policy relating to the period 2002-2007 does not arise, as the terms of both these policies are not identical. 26. As far as the decision reported in (2005) 3 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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