TMI Blog2017 (3) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... tification issued by the Government of India. The reason for which Ext.P3 Notification was issued by the Government of India is not discernible. Petitioner is not entitled for a direction to release the goods detained under Ext.P1 receipt, provisionally to the petitioner. But, dismissal of this writ petition will not stand in the way of considering Ext.P2 application submitted by the petitioner, if and when situation demands - petition dismissed - decided against petitioner. - W.P.(C) No.2289 of 2017 - - - Dated:- 10-2-2017 - SHAJI P. CHALY, J. FOR THE PETITIONER : ADVS.SRI.P.A.AUGUSTIAN, SRI.M.A.BABY, SMT.LINDA.M.J. FOR THE RESPONDENT : ADV. SREELAL N. WARRIER, SC JUDGMENT This writ petition is filed by the petitioner seeking direction to the respondent to release the goods to the petitioner detained as per Ext.P1 detention receipt dated 08.11.2016, and for other related reliefs. 2. Petitioner is a Non-Resident Indian. While returning to India, petitioner carried a few items including a 'drone' which is meant for use in petitioner's Photo Studio in Ernakulam. On arrival in India, petitioner made true declaration regarding presence of Drone. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, Prohibited goods means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which, the conditions subject to which the goods are permitted to be imported, or exported, have been complied with. In the instant case, the passenger has not produced any clearance of the DGCA and import license from DGFT, as required for clearance of the drone imported by him, which thus means, petitioner has failed to comply with the conditions subject to which the goods are permitted to be imported. Therefore, the drone brought by him has acquired the character of Prohibited goods as defined under the Customs Act, 1962. Hence, the drone imported by the petitioner is detained lawfully as a 'Prohibited item' vide Ext.P1 Detention Receipt. The contention raised by the petitioner with respect to non-issuance of trade notice or information is refuted by the respondent stating that the said information is available in the public domain, and therefore, ignorance of law is not an excuse to import any restricted or prohibited item. The petitioner himself has stated that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port-Import), Chennai-I' [2015 (316) E.L.T 199 (Mad.)] (iii) ' Navshakti Industries Pvt. Ltd. v. Commissioner of Customs, ICD, TKD, New Delhi ' [2011 (267) E.L.T 483 (Del.)] (iv) 'Bhaiya Fibres Ltd. v. Addl. Director General of Revenue Intelligence ' [2012 (281) E.L.T 396 (Del.)] 8. On the other hand, learned Standing Counsel for the respondent relying on Sec.2(33) of the Customs Act, submitted that, in effect, the drone brought in by the petitioner becomes a prohibited goods, since prior permission and import license are not secured from the DGCA and DGFT. Learned counsel has also invited my attention to Sec.3 of the Foreign Trade (Development and Regulation) Act, 1992 in that regard, which read thus: SECTION 3. Powers to make provisions relating to imports and exports .--(1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing 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 specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles of law laid down by various High Courts, and the arguments advanced, I am of the considered opinion that in all those cases, the question with respect to the restrictions made was on account of the liability to pay the import duty etc. etc. on goods imported in the context of 'prohibited' or 'nonprohibited'. Here is a case where the restriction made is securing prior permission/licence from the two statutory authorities of the Government of India. Therefore, the restriction is a pre-condition to import goods. Petitioner has not challenged Ext.P3 Notification issued by the Government of India. The reason for which Ext.P3 Notification was issued by the Government of India is not discernible. Anyhow, the same is a notification issued by the Government in the year 2016, and even according to the petitioner, till such time, there was no restriction or prohibition to import drone. Therefore, Ext.P3 notification issued can only be on the basis of convincing reasons to the Central Government. In this regard, the reliance placed by the Standing Counsel at the proposition of law laid down by the Apex Court in ' Anirudh Singh Katoch ' and this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods requiring prior permission, permission is a necessary corollary to classify the goods non prohibited, which thus means, the goods are classified, 'prohibited' and 'non-prohibited' in accordance with the tenor and terms of the law in force. That apart, provisions of Sec.3 of the Foreign Trade (Development and Regulation) Act, 1992, make the situation abundantly clear that, whenever there is a restriction created by an order published in the official Gazette, it shall be deemed to be goods prohibited under Sec.11 of the Customs Act. Again, sub-section 4 of Sec.3 of Act, 1992 specifies that the provisions of Act 1992 is not in derogation of other laws in vogue. 15. Taking into account the totality of the circumstances and the law involved in the subject discussed above, I am of the definite opinion that petitioner is not entitled for a direction to release the goods detained under Ext.P1 receipt, provisionally to the petitioner. But, I make it clear, dismissal of this writ petition will not stand in the way of considering Ext.P2 application submitted by the petitioner, if and when situation demands. The writ petition is dismissed subject to the above obs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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