TMI Blog2016 (4) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of fine under Section 125 of the Customs Act, 1962 in the identical facts, wherein the old and used digital multifunction devices with standard accessories and attachments are imported without authorisation. On the other hand, the Commissioner, Chennai is taking a contrary stand. Thus the inconsistent views while exercising discretion have led to indiscretion at the 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962, provides for provisional release. Even the Foreign Trade (Regulation) Rules, 1993 allows redemption of confiscated goods under Rule 17(2). No proceedings have been 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 dated 26.5.2014, upon payment of applicable duties of customs, subject howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) 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 Policy, 2009-2014, under Notification No.35 (RE-2012)/2009-2014 dated 28.02.2013, the Government had amended Para 2.17 of the Foreign Trade Policy that under the Head of second hand goods , in the category of second hand capital goods , import of (i) personal computers/laptops, including their refur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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), HBP v1, 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. Read in the context of the choice laid down for compliance by an importer as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om all angles, we do not find any infirmity in the order rendered by the learned Single Judge, wherein the appellants herein were directed 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 dated 26th May, 2014, upon payment of applicable duties of customs, however, the said release will be subject to final adjudication. The respondent is hereby further directed to furnish a bond, undertaking to pay the penalty as and if determined on proper adjudication. A show cause notice has been issued under Section 124 of the Customs Act, 1962 on 27th June, 2014. The respondent is granted two weeks time to furnish reply and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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