TMI Blog2013 (5) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.06.2012, the old and used Digital Multifunction Printing and Photocopying Machines could be import without any licence. In the light of the principle enunciated in Union of India and Others v. Asian Food Industries (2006 (11) TMI 10 - SUPREME COURT OF INDIA) & Gem Granites v. Commissioner of Income Tax, T.N. (2004 (11) TMI 13 - SUPREME Court) this Court makes it clear that Notification No. 1 (RE-2012)/2009-2014, New Delhi dated the 5th June, 2012 will come into force with effect from 5th June 2012. Therefore, the reliance made on the said Notification to state that the goods imported would come under Restricted Category cannot be pressed into service in these writ petitions. In the present case, import of goods have taken place earlier i.e., before 5th June 2012. Therefore, such reliance made on the Notification will not help the Respondents in any manner to advance their case. Writ petitions are allowed with a direction to the authorities to release the goods in question which had already been inspected by the authorised engineers, on payment of the appropriate customs duty. - Writ Petition Nos. 13050, 13105, 13106, 13256, 7395, 14622, 14696, 14697, 15253, 14660, 14661, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all direct the inspection of such goods before they are released and 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. Learned counsel also submits that these writ petitions are squarely covered by the learned Single Judge order. The above Single Judge order was also followed by the learned Judge of the Madurai Bench of the Madras High Court in W.P. No. 2401/2012 etc. batch dated 9-4-2012 and ordered release of goods. They further submitted that even the customs authorities had already released the goods in other assessee s cases in Chennai Port as well as Tuticorin Port. It is also submitted that the very same issue came up before the CESTAT, Bangalore Bench and the CESTAT in batch of Appeals vide Final Order No. 405 to 416 of 2011, dated 27-6-2011 [2012 (286) E.L.T. 545 (Tri.-Bang.)] had held that the Digital Multifunction Print and Copying Machines cannot be termed as Photocopier machiners to attract in the para of 2.17 of Foreign Trade Policy and had set aside the confiscation and penalties. Learned counsel also submitted that the petitioners are ready to pay the appropriate duty on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion from the Ministry of Environment and Forests and also relied on recent Notification No. 1 (RE-2012)/2009-2014, New Delhi dated the 5th June, 2012 and the same reads as follows :- In exercise of powers conferred by Section 5 of the Foreign Trade (Development Regulation) Act, 1992 (No. 22 of 1992) read with paragraph 1.2 of the Foreign Trade Policy, 2009-2014, the Central Government hereby notifies the Foreign Trade Policy, 2009-2014 as updated upto 5th June 2012 and incorporating the Annual Supplement. This shall come into force w.e.f. 5th June, 2012 Effect of Notification : The revised edition of the FTP incorporating the changes made upto 5th June, 2012 will become operation. He contended that in view of the above notification, export and import should be governed by sub-clause 2.17 I(a)(ii), of the Foreign Trade (Development Regulation) Act, 1992, wherein, it is stated that Photocopier machiners/Digital multifunction Print and Copying Machines fall under Restricted Category . He further submitted that therefore, the above said notification clarifies the position and it is applicable for the Foreign Trade Policy 2009-2014. He further argued that the said notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. B1110 of part B of schedule III to the said Rules, 2008. The respondents have not been in a position to show, by sufficient evidence, that the goods imported by the petitioners are mere Electrical or Electronic Assemblies falling under Basel No. B1110 Part B of Schedule 3 of the said Rules. 24. It could be gathered, from the Minutes of the twenty fourth meeting of the Technical Review Committee, held at New Delhi, on 16-11-2011, that there is no specific mention about the multifunction devices in the EXIM and therefore, the import of multifunction devices need to be placed in the same category, as photocopying machines. In fact, it had been decided, in the said meeting, to request the Directorate General of Foreign Trade to include multifunction devices in the restricted list, so that the Ministry of Environment and Forests co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increased exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods. (3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under Section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. Section 5. Export and import policy. - The Central Government may, from time to time, formulate and announce by notification in the Official Gazette, the export and import policy and may also, in like manner, amend that policy. From reading of Section 3, it is clear that the Central Government is empowered to make provisions with regard to development and regulation of foreign trade and the same may be made by order published in the Official Gazette. The Central Government is further empowere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st that it was to operate retrospectively. Apart from the lack of any express words indicating such intention, there is nothing in the statute from which we can infer on any principle of interpretation that the intention of Parliament was to give the amendment retrospective effect. 7. Thus, in the light of the principle enunciated by the Supreme Court in the above judgment and the relevant provisions of law, this Court makes it clear that Notification No. 1 (RE-2012)/2009-2014, New Delhi dated the 5th June, 2012 will come into force with effect from 5th June 2012. Therefore, the reliance made on the said Notification to state that the goods imported would come under Restricted Category cannot be pressed into service in these writ petitions. Thus, any imported goods which comes under sub-clause 2.17I(1)(ii) of the Foreign Trade (Development and Regulation) Act, 1992 would fall under Restricted Category only after 5th June 2012. In the present case, import of goods have taken place earlier i.e., before 5th June 2012. Therefore, such reliance made on the Notification will not help the Respondents in any manner to advance their case. Under these circumstances, the common order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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