TMI Blog2019 (9) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... hin six months of the seizure of the goods under subsection (1) and such omission obligates the officer to return the goods to person from whose possession it is seized. Condition precedent for complying Section 110(2) is an order of seizure under Section 110 of Customs Act. It is not the case of petitioner that order for seizure of goods imported through Ext.P2 has been made by respondent. The allegations in the writ petition are to the effect that there is complete inaction notwithstanding the decision of Courts of competent jurisdiction on the very same point. While arguing the writ petition an attempt was made on one hand by the petitioner to get a declaration from this Court that the goods imported through Ext.P2 are entitled to be provisionally released albeit payment of applicable tariffs. On the other hand, an attempt is made by the respondent to get a decision on the goods imported, that the goods imported through Ext.P2 come under prohibited category. This Court is not pursuaded at this juncture to assume that the goods imported through Ext.P2 come either under restricted category or prohibited category. But at the same time the Court is not convinced with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Cochin Port under the administrative control of respondent herein. Bills of Entry Nos. 8594132, 8593174, 8593194, 8595652 and 8595656 dated 17.02.2017 (Ext.P2) were filed with the Cochin Customs House. The respondent detained the goods imported through Ext.P2 alleging illegality. The petitioner was informed that as per the amended provisions of law the petitioner is required to produce Extended Producers (EPR) certificate as per E-waste Management Rules (EMR), 2016. The petitioner complied with the said requirement by securing Ext.P3 EPR Certificate dated 21.04.2017. The petitioner through Ext.P4 letter dated 05.05.2017 requested for provisional release of imported goods in Ext.P2 Bills of Entry. Contrary to the standard practice of examination of goods by Customs approved Chartered Engineer, the respondent insisted to get examination of imported goods in Ext.P2 by a Chartered Engineer appointed by Director General of Foreign Trade (DGFT). The petitioner with a view to avoiding delay in customs clearance agreed to the said condition as well. The respondent, however, restricted the inspection of goods to Bill of Entry No.8593174 dated 17.02.2017. The report of the approved Charter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner within six months and with the expiry of six months the respondent is under legal obligation to restore goods to petitioner. The petitioner relies on the judgment reported in Jatin Ahuja Vs. Union of India 2013 (287) E.L.T. 3 (Del). The imported goods cannot come under the category of prohibited' goods to order for absolute confiscation/re-export. The circumstances of the case do not warrant re-export of goods either. The petitioner is entitled for provisional release of subject goods on petitioner paying applicable duties etc. The respondent issued restrain order to the Customs Fright Station on the ground that Ext.P2 imported goods are liable for confiscation and such conclusion by respondent is without basis, in law and on fact. 5. The petitioner states that the continued inaction in clearing the goods is at the instance of multi-national companies engaged in the import and trading of virgin machines in India. The petitioner states that goods imported through Ext.P2 do not violate the applicable laws of India. The respondent, owing to a view already taken in this behalf which is found to be erroneous and illegal by CESTAT and Courts, is unable to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / License from DGFT for import of these Restricted Goods which is only allowed to be imported by Actual Users. The importer is a Trader and not an actual user. ...... In the present case, the importer has imported restricted goods as per FTP without mandatory Authorization from DGFT. Thus violated section 3 of the Foreign Trade (Development and Regulation) Act, 1992. The goods also require registration from BIS or exemption from MeitY as per CRO, 2012. By not producing BIS registration or exemption from MeitY they have violated the provisions of CRO, 2012. Further, they have also violated the various conditions under the H OW Rules, 2012 such as nonproduction of Form 6 Form 7, violation of Direct re-use condition, non-production of Inspection certificate from the country of export, non-production of acknowledgement copy of annual returns etc. ..... that as per the condition 4(j)(b) of Schedule VIII to the H OW Rules, 2016, the importer of MFD is required to produce a certificate issued by the inspection agency as certified by the exporting country or inspection and certification agency approved by Directorate Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt denies the allegation that the delay is not on account of the influence exerted by anyone on the respondent but completely on account of petitioner s failure to submit all the certificates required in this behalf for inspection etc, under the Act. In other words, the contention of petitioner that the action of respondent is on the influence of multinational companies is baseless. The importer is trying to mislead the facts to get the prohibited goods cleared from import. DMM if are dumped in India to avoid accumulation of defective and used goods in exporting countries, such dumping results in e-waste accumulation beyond salvation. The developed countries are using India as a dumping ground. As per the concept of Extended Producer Responsibility (EPRA), which has been in existence in developed countries, the producers ought to buy back e-waste/goods and handle/disposal of the goods in a safe manner. To avoid the responsibility and the expense involved in such process these types of goods are exported to other countries in the guise of used electronic goods. 8. The learned counsel appearing for the parties have made elaborate and extensive arguments by referring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. True copy of the report of CE dated 30.12.17 is produced herewith and marked as Exhibit P5. Thereafter concerned officer assured that the proceedings will be completed at the earliest. 11. From the above it is clear that inspection of goods imported under the Bill of Entry has not been taken so far by the respondent. There is a serious dispute on whether the subject goods comes under restricted category or prohibited category under various Enactments, Rules and Regulations referred to above. This Court, without determination on the aspect by the authorities in accordance with law ought not to accept one view or the other strenuously canvassed by the parties. The petitioner relies on Section 110 Seizure of goods, documents and things. ( 1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extract therefrom in the presence of a officer of customs. of Customs Act. Section 110 deals with seizure of goods, documents and things by the officer authorized by the Act. Section 110(2) deals with a situation where notice under clause (a) of Section 124 is not issued within six months of the seizure of the goods under subsection (1) and such omission obligates the officer to return the goods to person from whose possession it is seized. Condition precedent for complying Section 110(2) is an order of seizure under Section 110 of Customs Act. It is not the case of petitioner that order for seizure of goods imported through Ext.P2 has been made by respondent. The allegations in the writ petition are to the effect that there is complete inaction notwithstanding the decision of Courts of competent jurisdiction on the very same point. While arguing the writ petition an attempt was made on one hand by the petitioner to get a declaration from thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent herein or, through the respondent, such competent authority, to inspect the goods imported and obtain report or certificate, as the case may be, on the specification, nature etc of goods imported. By referring to the certificate/authorization/ report made available in this behalf the respondent passes an order whether the goods imported, comes under restricted category or prohibited category. If the goods imported come under restricted category what are the obligations the petitioner is required to comply with for customs clearance. The respondent passes orders as are deemed within five weeks from today. b) The above directions are issued firstly to prevent passage of goods if prohibited, which may result in India being used as a dumping ground for prohibited goods and simultaneously prevent the respondent from mixing up restricted goods with prohibited goods categories and continuously keep the goods imported in a state of uncertainty. c) The entire exercise is directed to be completed within four weeks from today. W.P.(C) No.10366 of 2019 Having regard to above discussions, W.P.(C) No.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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