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2016 (4) TMI 184 - MADRAS HIGH COURT

2016 (4) TMI 184 - MADRAS HIGH COURT - 2016 (336) E.L.T. 19 (Mad.) - Seeking direction to assess and permit provisional release of second hand Digital Multifunction print and copying machines - upon payment of applicable duties of customs on assessable value - Goods notified as restricted goods as per Notification No.35 (RE-2012)/2009-2014, importable only as against authorisation - Held that:- the Commissioners of different regions, namely, Kolkata, Mumbai, Delhi and Chennai are exercising thei .....

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he hands of the Commissioners, resulting in divergent orders being passed. It is well settled that exercise of discretion dehors proper guidelines may create sometimes discrimination and arbitrariness. As a sequitur, the Central authorities may consider issuance of proper guidelines to all Commissioners, dealing with the goods, which are imported without authorisation in respect of release of goods, subject to adjudication as contemplated under the provisions of law. Respondents shall furnish a .....

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assed in W.P.No.16288 of 2014. 2 The writ petitioner / respondent herein filed the writ petition, seeking direction to the appellants herein to assess and permit clearance of 129 units of second hand Digital Multifunction print and copying machines, forming the subject matter, vide Bill of Entry No.5602113 dated 26th May, 2014 upon the payment of applicable duties of customs on the assessable value as determined by the competent authorities. 3 The learned Single Judge, recording the fact that wi .....

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een initiated by an authority competent in terms of the Hazardous Wastes Rules for directing the petitioner to re-export the goods. Therefore, the petitioner, in my considered view, is entitled to the release of the goods provisionally. 35.In view of the above, the writ petition is allowed, directing the respondents to assess and permit the provisional release of 129 units of second hand Digital Multifunction Print and Copying Machines, which form the subject matter of Bill of Entry No.5602113 d .....

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), Chennai. 4 The gravamen of challenge is the notification, dated 28th February, 2013, whereunder the second hand digital multifunction print and copying machines are made as restricted goods importable only under authorisation. Indisputably, the respondent herein has not obtained any authorisation. 5 The question as to whether restricted goods, which are imported without authorisation, can be released on payment of customs duty pending adjudication before the Customs authorities, came up for c .....

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fficer has exercised his discretion. The Tribunal [2009 (236) E.L.T. 587 (Tri.- Mum.)] has upheld the order of the adjudicating officer. 6. A Division Bench of this Court in Commissioner of Customs, Tuticorin Vs. City Office Equipment 2014 (302) E.L.T. 212 (Mad.), had taken a similar stand and held as under: 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 Pol .....

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ly 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 .....

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r any such indication to read it so, particularly in the context of the powers conferred under Section 5 of the Foreign Trade (Development and Regulation) Act on the Government to make amendment to the policy. A comparative study of Notification No.35 (RE-2012)/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 ag .....

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the choice laid down for 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. and permitted the writ petitioners to take goods on furnishing a bond for the penalty. 7. It is also submitted that the Commissioners of other areas are permitting the release of goods on furnishing of bank guarantee and also payment of penalty on determination. 8. The learned Senior Counsel appearing for the r .....

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7; 23,83,359.00 under section 111(d) of the Customs Act, 1962. I however give the importer an option to redeem the said goods on payment of a fine under section 125 of Customs Act, 1962 of ₹ 4,10,000.00 (Rupees : Four Lakh Ten Thousand Only). I also impose a penalty of ₹ 1,80,000.00 (Rupees : One Lakh Eighty Thousand Only) on the importers under section 112(a) ibid on the offending goods as this is the 13th offence of the importer. Differential duty, fine and penalty to be paid forth .....

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