9911796707
TMI Blog2014 (4) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 2.1 The petitioner is engaged in the business of importing computers, printers and other accessories including laptop, notebook, tablets, printers, plotters, scanner, wireless keyboards etc. from different countries for their sale in India. For the purpose of import of the aforesaid goods, the petitioner is holding a requisite license and permission from the concerned governmental agencies as required under the law. The petitioner is also a registered dealer according to the provisions of the Central Sales Tax Act. The petitioner is paying the requisite import, customs and other allied duties. The petitioner claims to be a legitimate and bona fide trader carrying on his business in conformity with the relevant laws, rules and regulations framed from time to time. 2.2 According to the petitioner, there are numerous other persons in the country carrying on similar business activities and engaged in the import and sale of the imported electronics and information technology goods in India. 2.3 The petitioner and such other importers were carrying on their lawful business activities of selling the aforesaid branded products in Indian market at a competitive price by purchasing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the respondents be directed to modify the impugned order to the extent that the importer of electronics and information technology goods be permitted to apply and get the registration from BIS without the requirement of authorization of the manufacturer and without the requirement of supply of such technical specifications which are available only with the manufacturer. 3. Stance of the Respondent No. 1 - Union of India 3.1 On behalf of the Union of India, an affidavit-in-reply has been filed duly sworn by the Director, Department of Information Technology, Ministry of Communications and Information Technology, New Delhi, inter alia, stating as under: 'As a part of National Policy on Electronics (NPE), the activity of developing and mandating standards has been adopted by the Government of India with a view to - Provide Indian consumers with the right to enjoy world class goods - Upgrade the quality of domestic products for bringing Global competitiveness - Develop strategy to stop dumping of non-compliant goods - For projecting a positive image internationally as a country with quality production of the Electronic & IT goods. Department of Electronics & Information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sometimes impossible, hence the need for local representative in India. The local representative is responsible on behalf of overseas manufacturers towards Indian laws and liability issues arising out of goods placed in Indian markets. But, once registration is done, and goods are certified to be safe and conforming to notified standards any person/entity can import provided the product bears the self - declaration mark with IS No., as required by the order. This notification applies to manufacturers only and does not affect the right of petitioner for parallel imports. 3.8 ............. Addressing regulations on Safety/Health/Environmental issues are one of the responsibilities of the Govt. to ensure safety of its citizens and are in place in most of the countries of the world. Department of Electronics and Information Technology (DeitY) had initiated the process for creating a suitable framework in the country for ensuring compliance of Electronics & IT goods to Standards of Safety and this initiative has been put in place after due consultations with stakeholders which include industry associations, Department of Consumer Affairs (DoCA), Ministry of Commerce, Bureau of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present petition, the Electronics and Information Technology Goods (requirement for compulsory registration) Order, 2012 dated 07.09.2012 (hereinafter to be referred to as "Order" for convenience) and Notifications issued pursuant thereto by the respondent no.1, the Central Government of India. The said Order dated 07.09.2012 was issued and published in the Official Gazette by respondent no.1 by exercising its powers under Section 10(1)(p) of the Bureau of Indian Standards Act, 1986 read with Rule 13 (FA) of the Bureau of Indian Standards Rules, 1987 (hereinafter to be referred to as "Act" and "Rules" respectively for convenience). 5, (a) to (b) ............. (c) With regard to para no. 3.4 of the petition, the contents thereof are denied, since the same are contrary to the intention of the respondents behind the Order so passed on 07.09.2012. It is further submitted that the said Order has been introduced to safeguard the interest of the consumer. In addition to providing safeguard to the interest of consumer, the same also provides the mechanism through which safe electronics and Information Technology (IT) goods are made available to the consumers. It is pertinent to note t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle and Process and importers are not at all affected by the same. Hence, it is not proper for the petitioner to allege that the execution of the impugned Order would result into loss of livelihood to the petitioner. 6. I further submit that the impugned Order is applicable only to the manufacturers of electronics and IT goods irrespective of their nationality. The Manufacturer, who is desirous to market and sell its products in India, the same has to get the electronic and IT goods registered with the respondent no.2, which would after conducting a test in the laboratory recognized by the respondent no.2 issue the appropriate direction. Therefore, the grievance raised by the petitioner cannot be sustained since, the petitioner is not a manufacturer but merely an importer of electronic and IT goods." 5. Mr. Shalin Mehta, the learned Senior Advocate appearing on behalf of the petitioner vehemently submitted that the impugned order and notifications issued by the respondent authorities are ultra vires Article 14 and 19 (1) (g) of the Constitution of India. Mr. Mehta submitted that the action on the part of the authorities could be termed as violative of the principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conform to the standards specified. 6.2 It was also submitted that the term "manufacturer" under the Act means the manufacturer of any article or process. Therefore, the rules or the orders issued thereunder are only applicable to the manufacturers of the article and the importers are not at all affected by the same. 6.3 It was submitted that the order impugned is neither ultra vires nor violative of any of the provisions of the Constitution as the same has been issued after consultation with the stakeholders in the electronic sector. 6.4 Thus, according to the learned counsel appearing for the respondents, there is no merit in this petition and the policy decision may not be interfered with having regard to the limited scope of judicial review in the matters of the present nature. 7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this petition is whether the Electronics and Information Technology Goods (Requirement for Compulsory Registration) Order, 2012 and the notifications issued pursuant thereto are in any manner ultra vires Article 19 (1) (g) of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Specified Standard and do not bear the words "Self declaration - Conforming to IS (Relevant Indian Standard mentioned in column (3) of the Schedule) on such Goods after obtaining Registration from the Bureau: Provided that nothing in this Order shall apply in relation to manufacture of Goods meant for export. (2) The substandard or defective Goods which do not conform to the Specified Standard mentioned in column (3) of the Schedule shall be deformed beyond use by the manufacturer and disposed off as scrap. 4. Power to call for information, etc. - (1) The Appropriate Authority or a person authorized by him, may with a view to secure compliance with this Order require any person engaged in the manufacture, store for sale, sale or distribution of any Goods to give such information as he deems necessary relating to the manufacture, storage for sale, import, sale or distribution of any Goods or require any such person to furnish to him samples of Goods. (2) With the specific order each time of an authority at an appropriate senior level nominated by the Secretary in the Department of Electronics and Information Technology, the Appropriate Authority or person authorized by him, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n office or branch office located in India or by any person or agency as authorized by the Appropriate Authority: Provided that unclaimed consignments of such goods shall be deformed and disposed of as scrap by such department or agency as may be authorized by the Appropriate Authority;' 10. From the above, it appears that the Central Government in its wisdom thought fit to evolve a policy with a view to safeguard the interest of the consumers. It has been clarified that the impugned order is applicable only to the manufacturer of the electronics and information technology goods irrespective of their nationality. The manufacturer who is desirous to market and sell its products in India, is obliged to get the electronics and information technology goods registered with the respondent no.2 - Bureau of Indian Standards, who would conduct the test in the laboratory recognized by the respondent no.2. In such circumstances, if the goods imported are also subjected to such tests with a view to see that it adheres to the standards prescribed in India then it could not be said that such an action or decision is violative of Article 19 (1) (g) of the Constitution, i.e. right to carry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which amounts to manufacturing activities according to Section 2F of the Excise Act, 1944. The order impugned mandates that such testing should be by laboratories authorized by the respondent no.2-Bureau of Indian Standards. 14. This is not a case where the parallel imports are completely stopped or banned but are permitted subject to certain restrictions like submitting the products for testing to the BIS recognized labs to comply with the Order, 2012. 15. A lot many suggestions have been given by the petitioner in this regard but we are afraid it is not for this Court to consider such suggestions and then direct the government to look into the same. This Court is not an expert in the field of electronics and information technology and, therefore, should not ordinarily interfere with such decisions taken by the government. 16. The duty of the Court is to confine itself to the question of legality. Its concern should be (i) whether the decision making authority exceed its powers, (ii) committed an error of law &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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