TMI Blog2021 (4) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed on the same lines - decided against Revenue. - W.A.Nos.1096 to 1098 of 2021 And C.M.P.Nos.6936, 6934 & 6937 of 2021 - - - Dated:- 31-3-2021 - Honourable Mr.Justice T.S.Sivagnanam And Honourable Ms.Justice R.N.Manjula For the Appellant : Mr.V.Chandrasekaran (in all appeals) For the Respondents : Mrs.AL.Ganthimathi for R1, Mrs.R.Hemalatha, SSC for R2 to R4 (in all appeals) COMMON JUDGMENT T.S.SIVAGNANAM, J. These writ appeals filed by the Director General of Foreign Trade is directed against the common order dated 25.01.2021 passed in W.P.Nos.8574, 8575, 8576 of 2020. 2. In the said writ petitions, the appellant was the fourth respondent and the respondents 1 to 3 were the Customs Department. The writ petitions were allowed with a direction to release the consignments in question upon remittance of enhanced duty as quantified. 3. The Customs Department had filed writ appeals challenging the common impugned order in W.A.Nos.642, 687, 688, 690, 691, 694, 696, 697 698 of 2021 and the appeals were allowed by this Court, by judgment dated 04.03.2021. The operative portion of the judgment reads as follows: 18.The first issue we need to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 110A of the Act is whether, import of goods is prohibited, within the meaning of Section 2(33) of the Customs Act and where, in the Customs Act or any other law for the time being in force, such prohibition is mentioned. Therefore, we need to examine as to whether such goods are restricted or prohibited items. 21.The Ministry of Communication and Information Technology by notification S.O.2357(E) dated 07.09.2012 in exercise of its powers conferred under Section 10(1)(p) of the Bureau of Indian Standards Rules, 1987 issued the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012. Clause 3 of the Order deals with prohibition regarding manufacture, storage, sale and distribution, etc. of goods, which reads as follows: 3.Prohibition regarding manufacture, storage, sale and distribution, etc. of goods:- (1) No person shall by himself or through any person on his behalf manufacture or store for sale, import, sell or distribute Goods which do not conform to the Specified Standard and do not bear the words Self declaration Conforming to IS (Relevant Indian Standard mentioned in column (3) of the Schedule) on such Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t printers are covered under Electronics and IT Goods (Requirements for Compulsory Registration) Order, 2012 mandating Indian safety standards for the notified goods and must be registered with BIS before sale in India. It is further stated that since second hand Multifunction printers are registered with BIS nor they have sought permission from MeitY for their import, such imports would be in violation of Compulsory Registration Order, 2012. 25.The Directorate of Revenue Intelligence also issued Alert Circular No.07/2017 dated 11.07.2017 reiterating the stand taken by the Ministry. Another circular was issued by the MeitY in Circular No.1 of 2019 dated 02.05.2019 clarifying that MFDs which are basically printers with additional features like photo copy, scan, fax, etc. are covered in the category Printers, Plotters notified under the Order dated 03.10.2012. 26.The argument of the respondent importer is that the earlier notification which had only listed out the printers and plotters cannot now be expanded to cover MFDs by virtue of a Circular and therefore, the same is without jurisdiction. We will deal with this contention a little later. 27.The MeitY by notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter and the need for such clarification arose on account of unethical imports which was taken note of by MeitY while issuing office memorandum dated 10.03.2017. It has clearly stated that the traders of various parts of India, especially Delhi and Kolkata, are regularly importing large quantities of used MFDs through Cochin Port and none of them have produced any documents before the Customs Department to prove compliance of the Registration Order, 2012. Therefore, on account of unscrupulous person resorting to such imports, the necessity arose for the MeitY to issue clarification/circular. Therefore, it has to be necessarily taken that for all purposes, the Department has been consistent in their stand that MFDs are covered within the scope of Printers. This was made doubly clear by issuing of the notification dated 01.04.2020. 31.We find that in none of the above referred decisions which were referred to by the respondent, the above contentions have been dealt with. In any event, with utmost respect we would humbly observe that any direction issued for provisional release being interlocutory in nature cannot be cited as a precedent. It was lamented before us by the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, if we take up the case of the respondent, M/s.Best Mega International, the petitioner in W.P.No.8574 of 2020, we find that the application for provisional release was filed on 09.06.2020 and the writ petition was filed on 18.06.2020. Thus, it is clear that no reasonable time was granted to the Department to examine the application. On perusal of the application filed by the respondent/writ petitioner dated 09.06.2020, we find that the application is not a simple application for provisional release but in fact it covers most of the grounds which have been raised in the writ petition. It is rather surprising that an application for provisional release would contain such details without even the Department calling upon the respondent importer to furnish details or to give explanation. 34.In the light of the above, we hold that the contention advanced by the learned Additional Solicitor General merits acceptance. The orders of provisional release passed pursuant to the directions issued by the Writ Court being interlocutory in nature cannot be considered as a precedent. Merely by stating that identical imports were allowed to be provisionally cleared can be no reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MeitY exercising power under the provisions of the Bureau of Indian Standards Rules and the CRO. 37.The learned Writ Court in paragraph 7 of the impugned order has pointed out that there are conflicting decisions of the two Division Benches. As already mentioned, there can be no two similar orders in respect of directions for provisional release unless and until the Department concedes that the goods are identical and the same relief needs to be granted and two of the Division benches have directed the importers to approach the Department seeking release of the goods and we fully subscribe to the said view because in a writ petition, the Court cannot give a declaration as regards the classification of the goods. 38.The learned Additional Solicitor General rightly referred to the observations made by the High Court of Kerala in the case of Commissioner of Customs vs. Shri Amman Dhall Mill [Cus.Appeal No.14 of 2020 dated 22.01.2021] , wherein it has been observed that exercise of power and discretion under Section 125 of the Customs Act are specific and generally governed by the applicable policy, notification, etc. In the said case, the imported goods was green peas and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f para 2.17 of the FTP which allows import of second hand capital goods including refurbished/reconditioned spares without obtaining a license. There are two limbs to para 2.17 of the FTP and for easy reference, we quote the same hereunder: Para 2.17 of the Foreign Trade Policy All second hand goods, except second hand capital goods, shall be restricted for imports and may be imported only in accordance with provisions of FTP, ITC(HS), HBP vl. Public Notice or an Authorisation issue in this regard. Import of second hand capital goods, including refurbished/re-conditioned spares shall be allowed freely. However, second hand personal computers/laptops, photocopier machines, air conditioners, diesel generating sets will only be allowed against a license. Import of re-manufactured goods shall be allowed against a license. 19.In terms of the above, all second hand goods except second hand capital goods are restricted for import. It is not in dispute that 201 machines which were imported by the appellant were second hand goods. Thus, going by the first limb of para 2.17, license is required. In the second para, the Policy allows import of second hand capital go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he category 'freely importable' because they are capital goods. This contention was rejected by the Tribunal after taking note of the functionality of the machine which was imported and after taking note of the various Customs Tariff Headings and pointed out that photocopying machines are classified under various Tariff Headings such as 8443 3920, 8443 3930, 8443 3940, 8443 3950. Thus, it was pointed out that photocopying machines do not have any single entry in Tariff and copying machines whether or not combined with printers and facsimile machines are classified elsewhere as also machines which perform two or more functions of printing, copying or facsimile transmission as in the case of the imported goods. Further the Tribunal noted that DGFT notification No.31/2005 dated 19.10.2005 uses the expression photocopier machines and therefore, there is no warrant to read the expression appearing in the DGFT notification as conforming to any one particular expression used in the Tariff as these expressions are not identical and no Tariff item is mentioned in the DGFT notification. 40.In the result, the writ appeals are allowed and the order passed in the writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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