TMI Blog2013 (4) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... er, rightly, the Hand Book of Procedures (Vol.1) omitted Clause 2.33. The amendment to the policy has no relevance to the import under consideration. A comparative study of Notification No.35 (RE02012)/2009-2014 dated 28.02.2013 amending Para 2.17 of the Foreign Trade Policy and the provision that existed prior to 28.02.2013, show that the amended notification made the import policy regime as subject to an authorisation for import as against the original requirements viz., allowed to be imported only as per provisions of FTP, ITC(HS), HBPv1, Public Notice or an authorisation issued for import of the specified second hand item. In the light of the amendment and the clear provision, we do not find any justifiable ground to accept the case of the appellants to interfere with the order of the learned single Judge. We have already held that there is no conflict between the policy and the procedure laid down. - W. A. (MD) No. 890 of 2012,W.A.(MD) Nos.891 to 894, 949 to 961and1170 to 1188 of 2012 - - - Dated:- 14-3-2013 - Chitra Venkataraman And S. Vimala,JJ. For the appellants : Mr. R. Aravindan ,Mr. B. Vijay Karthikeyan For the Respondent : Mr. C. Natarajan, Mr. N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods on payment of customs duties by treating the imported goods as freely importable under Clause 2.33 of the Hand Book of Procedures (Vol.I). 5. A reading of the order of the learned single Judge shows that considering the clear terms used in Para 2.17 of the Foreign Trade Policy, learned single Judge held that the import of second hand goods, even though restricted, could be imported as free goods under Clause 2.33 of the Hand Book of Procedures (Vol.I). In the absence of any other conditions stipulated anywhere as provided for under Para 2.17, even though the imported goods are used second hand digital multifunction print and copying machines, falling under the head of restricted second hand capital goods, the import made is covered by what is provided for under Clause 2.33 of the Hand Book of Procedures (Vol.I). Aggrieved by the order of the learned single Judge, the Commissioner of Customs, Additional Commissioner of Customs (Imports), Director General of Foreign Trade and the Additional Secretary to the Government of India are on appeal before this Court. 6. Learned Standing Counsel appearing for the Commissioner of Customs/the appellants herein submitted that they adop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly through authorisation, licence or permission from the appellants before import, there could be no free import and any such view taken would be in conflict with the Foreign Trade Policy. 9. Learned senior counsel appearing for the respondents supported the reasoning given by the learned single Judge and submitted that when the terms of the Foreign Trade Policy and the hand book are clear, there could be no interpretative process on Para 2.17 of the policy and Clause 2.33 of the Hand Book of Procedures (Vol.1), the writ appeals be dismissed. 10. Heard learned counsel appearing for the appellants and the learned counsel appearing for the respondents and perused the materials placed on record. 11. We agree with the submissions made by the learned senior counsel appearing for the respondents and we have no hesitation in confirming the order of the learned single Judge and thereby dismissing the writ appeals filed by the Commissioner of Customs, Additional Commissioner of Customs (Imports), Director General of Foreign Trade and the Additional Secretary to the Government of India. 12. It is the admitted case of the parties herein that Section 5 of the Act enables the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de has to specify the procedure to be followed by an exporter or importer or by any licensing/regional authority for the purpose of implementing the provisions of the Foreign Trade (Development and Regulation) Act, 1992, the Rules and the Orders made thereunder and the Foreign Trade Policy. Such procedures or amendments, if any, shall be published by means of a public notice. 16. There is also an enabling provision under Para 2.5 that on grounds of genuine hardship and adverse impact on trade, under which, the Director General of Foreign Trade may exempt any person or class or category of persons from any provision of the Foreign Trade Policy or any procedure. While granting exemption, he may impose such conditions as he may deem fit. 17. As far as the present case is concerned, Para 2.7 and 2.17 of the Policy are relevant. Para 2.7 deals with the manner of import/export of restricted goods. Para 2.17 deals with import of second hand capital goods. These goods are dealt with under two categories, viz., restricted category and free category. Paras 2.7 and 2.17 read as under: "2.7 Export / import of Restricted Goods / Services - Any goods / service, the export or import of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Policy, the restricted goods have to be in accordance with the authorisation / permission / conditions or in accordance with the procedure prescribed in the notice / public notice issued in this regard. Thus, we find, the conditions specified therein include what is prescribed under the Foreign Trade Policy, ITC(HS), Hand Book of Procedures (Vol.1), Public Notice or an Authorisation issued for import of the specified second hand item. 20. In terms of Chapter 2 of the Foreign Trade Policy, Hand Book of Procedure (Vol.I) and (Vol.II) are formulated, the objective being to implement the provisions of the Act, Rules and the Policy. The procedures lay down the simple, transparent and compatible procedure so that the objectives of the Act, the Rules and the Policy are facilitated. The definitions as are available under the Act, the Rules and the orders made in the Policy are applicable in the matter of understanding the various phrases used in the Hand Book of procedures (Vol.1) and (Vol.2). 21. Chapter 2 of the Hand Book of Procedures (Vol.1) lays down the general provisions regarding the exports and imports. Under this, we have Clause 2.33 relating to import of second hand capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd hand capital goods group, which means, other restricted category under second hand capital goods group, specified in Para 2.17, namely, photocopier machine/digital multifunctional printing and copying machines, air conditioners, diesel generating sets, like other goods falling under free category, are permitted to be imported freely. Under sub clause (b) of Clause 2.33, there is a specific reference to the import of second hand computers, including personal computers/laptops and refurbished/reconditioned spares thereof, which suffer restricted import. Sub clause (c) of Clause 2.33 is with reference to import of refurbished/reconditioned spares of capital goods, such as what is covered under sub para (b), namely, personal computers/laptops. Thus, the refurbished/ reconditioned spares of capital goods could be allowed for import only on production of Chartered Engineer's certificate that such spares have at least 80% of residual life of original spares. Thus, with classification of goods carrying conditions on import specifying the manner of import, the import policy regime on second hand capital goods dealt with under Para 2.17 is laid down in clear terms in Clause 2.33 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines (iii) Air conditioners and (iv) Diesel generating sets can be imported only as against authorisation. Taking the said amendment further, rightly, the Hand Book of Procedures (Vol.1) omitted Clause 2.33. The amendment to the policy has no relevance to the import under consideration. 24. The Foreign Trade Policy and the procedure relevant to us is the one laid down in the policy covering the period 2009-2014. The amended Para 2.17 of the Policy and Hand Book of Procedures (Vol.1) are relevant only for the period post 28.02.2013. Hence, by no stretch of imagination, the amendment under Notification No.35 (RE02012)/ 2009-2014 dated 28.02.2013 could be taken as having any relevance for the import made prior to 28.02.2013. Even though learned Assistant Solicitor General placed strong reliance on Notification No.35 (RE02012)/2009-2014 dated 28.02.2013 that it is a clarificatory amendment and hence will have relevance to the case on hand and that it is given under the hand of the Director General of Foreign Trade who has effected this notification, we fail to gather any such indication to read it so, particularly in the context of the powers conferred under Section 5 of the Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion does not call for any interpretative process for an understanding, we reject the contention of the Revenue. 27. Learned Assistant Solicitor General placed reliance on the decision of the Bombay High Court reported in 2003 (156) ELT 819 (Bom.) (Narendra Udeshi Vs. Union of India). As in the case of the Apex Court reported in (2009) 5 SCC 46 (Atul Commodities (P) Ltd. Vs. Commissioner of Customs, Cochin), this decision also, does not, in any manner, help the appellants, for, the said decision again relates to the period 2002-2007. In the circumstances, the cases are distinguishable. 28. Learned Assistant Solicitor General also brought to our attention the decision of a Division Bench of this Court in W.A.Nos.2101 to 2103 of 2012 dated 02.11.2012 (The Director General of Foreign Trade and Additional Secretary to the Government Vs. M/s.Nitin Traders and others). A reading of the said decision shows that it related to appeals filed against an interim order in the writ petitions relating to the import of second hand copier machines. In considering the order passed as an interim measure, the Revenue contended that the order had been made without considering the effect of Para 2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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