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2019 (9) TMI 434

..... per E-waste Management Rules (EMR), 2016 - case of petitioner is that the broad classification or entry under which the goods are imported comes under ‘restricted’ category but not ‘prohibited’ category? - section 110 of CA. HELD THAT:- The 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. 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 o .....

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..... AL BOARD OF EXCISE AND CUSTOMS JUDGMENT Heard Adv.P.A. Augustine for the petitioner and Adv. P.R. Sreejith for respondents. 2. The petitioners in these two writ petitions though are distinct entities, as the writ prayers are substantially same, the writ petitions are disposed of by this common judgment. The counsel have treated W.P.(C) No.8944 of 2019 as the lead writ petition and have made submissions by referring to the record in W.P.(C) No.8944 of 2019. It is further stated that consideration of circumstances in lead writ petition would be sufficient for disposing of the other writ petition as well. W.P.(C) No.8944 of 2019 3. The petitioner does business of importing and exporting goods under Certificate of Import-Export Code (IEC) dated 14.08.2013 (Ext.P1). The petitioner in February 2017 imported Digital Multifunction Machines (DMM) through 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 provision .....

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..... scate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may at the request of the person concerned be oral. Provided further that notwithstanding issue of notice under this Section, the proper officer may issue a supplementary notice under such circumstances and in such manner as may be prescribed. of Customs Act of Customs Act and contends that the respondent did not issue show-cause notice to petitioner 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. T .....

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..... customs clearance through Bills of Entry Nos. 8594132, 8593174, 8593194, 8595652 and 8595656 dated 17.02.2017 attract Foreign Trade Policy (FTP), Hazardous and Other Wastes (Management and Tran boundary Movement) Rules, 2016 (H&OW Rules, 2016), E-waste (Management) Rules, 2016 and Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order 2012 (EITG Order 2012). The respondent asserts that goods imported through Ext.P2 are in violation of FTP, H&OW Rules, 2016, Ewaste (Management) Rules, 2016 and EITG Order 2012. To explain violations under the above Rules and Regulations the respondent states thus: ....The importer is not in possession of mandatory Authorization/ 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 registrat .....

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..... oduced herewith and marked as Exhibit R1(2). ... The importer failed to produce Inspection Certificate from the Country of export to fulfill the conditions specified in the H&OW Rules, 2016 such as residual life of the machine, functionality of the machines and direct reuse conditions etc. Further, they had also not submitted the import documents to the department for further verification as required under the Customs Act & the Hazardous and Other Wastes, Rules, 2016. 7. After elaborately setting out the above objections against writ prayer, the respondent 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 .....

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..... owed to clear by conducting examination by Customs approved chartered engineer. But respondent insisted that such consignment should be subject to examination by Chartered Engineer (CE) approved by the DGFT. Since there was undue delay, petitioner expressed willingness for that also. But respondent permitted inspection of goods under B/E no. 8593174 dated 17.02.2017 only. After getting report of chartered engineer, petitioner submitted the same to respondent. 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 .....

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..... ry of the period so specified; Provided Further that where any order for provisional release of the seized goods has been passed under Section 110A, the specified period of six months shall not apply. (3) The proper officer may seize any documents or 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 effec .....

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..... objections raised by the respondent in the counter affidavit filed in this behalf and the petitioner is given liberty to request within two weeks from today, the 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 t .....

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