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TMI Blog2021 (4) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... tified. 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 note of is as to the various orders of provisional release passed by this Court, the other High Courts and the Hon'ble Supreme Court. To understand the scope of the directions issued in those orders, we have extracted the tabulated statement as found in the counter affidavit of the Customs Department. 19.In our considered view, there are two reasons as to why this Court should independently consider the cases on hand. Firstly, the orders passed by the various Courts in the above referred cases are all orders granting provisional release. The question would be whether such an order of provisional release can be cited to be a precedent. Identical issue was considered in the case of Union of India vs. Manju Goel [2015 (321) ELT 19 (SC)], wherein it was held that an order of provisional release is, at all times, an interlocutory exercise and does not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Goods after obtaining Registration from the Bureau: Provided that nothing in this Order shall apply in relation to manufacture of Goods meant for export. (2) The substandard or defective Goods which do not conform to the Specified Standard mentioned in column (3) of the Schedule shall be deformed beyond use by the manufacturer and disposed off as scrap." 22.Schedule to the Order lists out the various products and the Indian Standard Number and the Title of Indian Standard. For the purpose of these cases, the following two entries would be relevant: Sl.No. (1) Product (2) Indian Standard Number (3) Title of Indian Standard (4) 7. Printers, Plotters IS 13252:2003 Information Technology Equipment - Safety - General Requirements 8. Scanners IS 13252:2010 Information Technology Equipment - Safety - General Requirements 23.In terms of clause 3 above, no person shall im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e later. 27.The MeitY by notification in S.O.1236(E) dated 01.04.2020 added another twelve products to the schedule to the Registration Order, 2012. In paragraph 2 of the notification, it has been stated as follows: "2.Since the Multifunction Devices [MFDs] are basically printers with additional capabilities like Fax, Scan, Photocopy, etc., thus, it is clarified that they are covered under the category of Printers/Plotters notified vide Gazette Notification dated 3rd October 2012. The other provisions of the aforesaid Gazette notification dated 3rd October 2012 would apply as before." 28.In terms of the above condition, the Ministry has stated that MFDs are basically printers with additional capabilities and they are covered under the category of Printers/Plotters notified vide gazette notification dated 03.10.2012. 29.The first limb of the argument of the respondent/writ petitioner is that the equipment imported by them is not a printer/plotter. The second limb, with prejudice to the first argument, is that even if the Ministry wants to classify the MFDs as printers, it could not have been done by virtue of the circular as the schedule to the order was by a statutory notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us by the respondent/writ petitioner that how may times the respondent can approach the Court for relief when several consignments of the same item has been released. Unfortunately the respondent/writ petitioners are before a Constitutional Court exercising power under Article 226 of the Constitution of India and not before the Customs Authorities or before the Special Valuation Branch of the Customs Department. Thus, we are constrained to observe that the change in the legal position, especially after the notification dated 07.05.2019 and the notification dated 01.04.2020, is of utmost significance which cannot be brushed aside. 32.The non-compliance of the CRO may lead to serious consequences. However, we do not wish to express anything in this regard because the learned Single Bench was not inclined to touch upon the merits of the matter but proceeded to grant release based on various orders passed by the High Courts and Hon'ble Supreme Court. As mentioned above in our most respectful view, those being orders of provisional release cannot be pressed into service by the respondent/writ petitioner, more particularly, after the issuance of the notification dated 01.04.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason to permit the respondent to clear the goods by way of issuance of a writ of Mandamus. This is more so in the instant case, because the matter is being considered after the notification in CRO dated 01.04.2020 which has made the items as prohibited items. Admittedly, none of the statutory notifications or amendments are put to challenge before this Court and we do not accede to the argument that the respondent need not challenge the provisions of the statutory notification as according to them, MFDs are not printers. The High Courts even under the normal course when matters travel by way of an appeal to this Court, are precluded from ruling on classification issues. Thus, these are all matters well beyond the purview of the writ jurisdiction and it is at best left to the decision of the Department who are bound to strictly implement the directions and the notification issued by the Government from time to time bearing in mind environmental protection and public interest. 35.Furthermore, we note that the earlier interim orders granted for provisional release were during the regime when the goods were treated as restricted goods requiring license for importation or certificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served that the primary authority has noted that by keeping in view the stand taken by the Union of India before the Hon'ble Supreme Court in Agricas LLP case, the available stock position of green peas is treated as surplus and declined release and ordered confiscation. Though in the said case, the Court examined the correctness of the order passed by the Tribunal in an appeal filed under Section 130 of the Act, it observed that the Tribunal fell in clear error of law by holding that release of goods is the only option to the Customs Commissioner due to the language of Section 125 of the Customs Act. Further the Court faulted the Tribunal and observed that if the reasoning is adopted both by the primary authority and the appellate Tribunal, then Exim Policy, notifications are defeated and opens floodgates for the import of green peas and such contingencies are commented by the Hon'ble Supreme Court in Agricas Case. Further, it faulted the Tribunal for having ignored the relevant notifications, the mandate of FTDR Act and the Customs Act, 1962. For all the above reasons, we hold that an order of provisional release could not have been ordered by the learned Writ Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned spares without obtaining any license. There is a restriction for import of second hand Photocopier machines and other items mentioned therein. The appellant did not produce a Chartered Engineer's certificate when the goods were imported. Therefore, the goods were subjected to examination by Docks Officer in the presence of a Chartered Engineer and certified that the goods are 4 to 10 years old, they are used and not reconditioned and the value of the second hand goods was appraised as USD 69395 [C&F]. The appellant's argument before the adjudicating authority is that the imported item is totally different and it can neither be considered as a photocopier machine nor part of computer and therefore, freely importable. The adjudicating authority took note of the unamended FTP and also the position after the amendment by notification dated 19.10.2005 and on facts, found that the digital multifunction machine imported by the appellant performs the function of photocopying as well as printing. It further held that the function is same as of the photocopying machine with additional facility of printing when connected to a computer. The correctness of this finding was re-examin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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