TMI Blog2024 (1) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... ith effect from 01.04.2023 is not different. Under it, imports are restricted wherever an importer complies with the requirement of All Electronic and IT Goods notified under the Electronic and IT Goods (Requirements of Compulsory Registration), 2012. Imports are prohibited in case of import of unregistered/non-compliant notified products as in CRO, 2012, as amended from time to time is prohibited . There is no doubt that the second hand and used multifunction printers/devices imported by the petitioner were prohibited under the provisions of the Foreign Trade Policy 2015-2020 as in force on the date of the respective Bill of leading on 13.09.2021 and on the date of filing of the respective Bill of Entries on 23.09.2021 for home clearance. However, there is relaxation under the new policy - there is a drift that any prohibition or restriction or obligation relating to import or export of any goods or class of goods or clearance thereof provided in any other law for the time being in force, or any rule or regulation made or any order or notification issued thereunder, shall be executed under the provisions of that Act only, if such prohibition or restriction or obligation is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld by the Hon ble Supreme Court of India vide, Order dated 11.08.2021 in SLP.No.7565 of 2021 batch. 2. The petitioner is seeking provisional release of the goods which are admittedly prohibited under Section 110 A of the Customs Act, 1962. 3. The petitioner had originally filed four Bill of Entries. The details of the Numbers, Date, Invoice value and the Value adopted in the Bill of Entries are as under:- Date Bill Of Entry No. Date Invoice No. Actual Transaction Value in US$(C F) 13.09.2021 5413583 28.08.2021 20216 1,11,760 17.09.2021 5474613 04.09.2021 0004 1,05,000 23.09.2021 5559768 11.09.2021 0172 73,095 23.09.2021 5560004 11.09.2021 841 1,34,500 4. Earlier this Court by its order dated 16.06.2023 had directed the Department to rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner(s) and Mr. N. Venkataraman, learned Additional Solicitor General appearing for the respondent(s) at length. On 05.07.2021, this Court had issued notice in these matters. Despite the fact that the matter was pending before this Court, the Department went ahead and confiscated the goods which are the subject matter of these petitions on 17.07.2021. Mr. N. Venkataraman, learned ASG, realizing the difficulty in his way, has 3 asked the Department to stay its hands so far as the confiscation is concerned. We see no reason to differ from a number of orders that have been passed by this Court in the past for provisional release of goods. However, it has been pointed out to us that at least on and from 01.04.2020, the goods, according to the Department, are clearly prohibited goods and on and from this date, unless an order is made under Section 125, the goods must stand confiscated. We stay the confiscation of these goods. The Notification dated 01.04.2020 is the subject matter of controversy before this Court, particularly in view of a subsequent Notification dated 18.03.2021 that has been pointed out by Mr. Arvind Datar, learned senior counsel. We, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the Customs Act. The second decision in the case of Matraco (India) Limited v Union of India and others [2003 (5) Mh.L.J.317] learned standing counsel points out, does not specifically refer to and dealt with the provisions of Section 15 of the Customs Act. The aforesaid statutory provision stated as follows:- 15. Date for determination of rate of duty and tariff valuation of imported goods. (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which 3[a bill of entry for home consumption in respect of such goods is presented under that section]; (c) in the case of any other goods, on the date of payment of duty: 4[Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft by which the goods are imported, the bill of entry shall be deemed to have been presented o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andard IS 13252 : Part 1 : 2010 [Title of Indian Standard Information Technology Equipment Safety General Requirements] 11. The schedule of the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012 in S.O.1236(E) was amended. It clarified that since the Multifunction Devices (MFD) are basically printers with additional capabilities like tax, scan, photocopy etc., they are covered under the categories of printers/plotters notified vide Gazette Notification dated 03.10.2012. 12. The clearance of these imported Multi Functional Devices have been further delayed by the respondents on account of invocation of order dated 18.03.2021 of Ministry of Electronics and Information Technology in S.O.1248(E) which was to come into force at the expiry of six (6) months from the date of its publication with effect from 17.09.2021. 13. The learned Senior Counsel for the petitioner would submit that the issue is now covered by the decision of the Hon'ble Supreme Court rendered in Delhi Photocopiers vs. Commissioner of Customs (GR.5) Chennai II and Others in SLP(C).No.7756 of 2021 and etc., batch dated 11.08.2021 arising out of a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become final. The distinction as to whether the relief of release is sought by way of Mandamus or by way of interim relief in a writ of Declaration is thus, not material. 17. These Writ Petitions are allowed. The consignments in question will be released upon remittance of the enhanced duty as quantified based upon the valuation of a certified Engineer. Adjudication proceedings to be initiated/will continue to be concluded, as expeditiously as possible. No costs. Connected Miscellaneous Petitions are closed. 15. The appeal of the Customs Department before the Hon'ble Division Bench of this Court was allowed by an order dated 04.03.2021 in W.A.Nos.642 of 2021 and etc., batch. The said order has been now interfered by the Hon'ble Supreme Court by its order dated 11.08.2021 as referred to supra. 16. The learned Senior Counsel for the petitioner has also placed reliance on the decision of the Telangana High Court at Hyderabad in the case of R.R.Marketing vs. The Union of India and Others , W.P.No.28391 of 2019.Wherein, it was held as follows:- Heard counsel for petitioner and Sri Namavarapu Rajeshwar Rao, Assistant Solicitor General, for respondents 1 to 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustry under the provisions of the Foreign Trade (Development and Regulation Act), 1992. 20. By Electronic and Information Technology Goods (Requirements for Compulsory Registration) Order 2012 vide Notification dated 07.09.2012 in S.O.2357(E), manufacture, storage, sale and distribution, etc., of goods as specified in Column 2 to the schedule to the above Order were prohibited if they did not conform to the Specified standard or 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 the Registration from the Bureau. 21. The only exception that provided was for the goods meant for export under proviso to Sub-Rule (1) to Rule 3 to Electronic and Information Technology Goods (Requirements for Compulsory Registration) Order 2012 vide Notification dated 07.09.2012 in S.O.2357(E). It reads as under:- 3: Prohibition regarding manufacture, storage, sale and distribution etc., of goods. 3(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 10(1)(p) of the Bureau of Indian Standards Act, 1986. 27. By exercising the same power, the Central Government viz., the Ministry of Electronics and Information Technology (Department of Electronics and Information Technology) (IPHW Division) notified few other items to the Schedule Notification dated 07.09.2012 vide Notification dated 01.04.2020 in S.O.1236 (E). In paragraph 2 of Notification dated 01.04.2020 in S.O.1236 (E), it was stated as follows:- 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. Thus, it was clarified that Multi Function Devices were covered under the above mentioned Order which was notified vide Gazette Notification dated 03.10.2012. 29. This notification was subject matter of SLP(C).No.7756 of 2021 and etc., batch, wherein the Hon ble Supreme Court has passed an interim order dated 11.08.2021 and allowed prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the territory of India. Under Rule 7, a transition period of three months from the date of the order coming into force of the Order was contemplated for a particular products category as specified. The benefit was available for foreign manufacturing unit having liaison office of branch office located in India for affixing Standard Mark at the ports which are already having registration number from the Bureau for clearance of goods from customs. 36. Rule 8 introduced exemption for Highly Specialized Equipments (HSE). The aforesaid amendment dated 01.07.2021 also prescribed the criteria for determining Highly Specialized Equipments. Rule 7 and 8 to Order 2021 as amended vide Notification dated 01.07.2021 in S.O.2844(E) which reads as under:- 7. Labeling at Custom Ports 8. Exemption for Highly Specialized Equipment (HSE) For all the product categories notified under the Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2021 , a transition period of three months (max), from the date of coming into effect of the Order for the particular product category, would be available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be basis for determining the imports made by the petitioner, imports were to be governed by Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2012 as per the decision of the Hon'ble Supreme Court rendered in Delhi Photocopiers vs. Commissioner of Customs (Gr.5) Chennai II and Others in SLP (C) No.7565 of 2021 dated 11.08.2021 Standard prescribed is applicable only for imports of new goods specified in the schedule or manufacture of the goods specified in the schedule. It does not deal with import of Second Hand Goods. Exemption under Rule 8 of Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2021 is for Highly Specialized Equipment (HSE). It is applicable only to Highly Specialized Equipment (HSE) as defined therein. However, it will apply only to new unused goods and not to second use multi function device such as printers and plotters. 42. The Second Hand Multi Function Devices are not governed by the provisions of the aforesaid Order. Although there is no express reference to import or sale or storage of use multi function devices under the Commerce Ministry in the Foreign Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) Protection of public morals; (b) Protection of human, animal or plant life or health; (c) Protection of patents, trademarks and copyrights, and the prevention of deceptive practices; (d) Prevention of use of prison labour; (e) Protection of national treasures of artistic, historic or archaeological value; (f) Conservation of exhaustible natural resources; (g) Protection of trade of fissionable material or material from which they are derived; (h) Prevention of traffic in arms, ammunition and implements of war (i) Relating to the importation or exportation of gold or silver. 49. As per Paragraph 2.10 of the Foreign Trade Policy (2015-2020), goods which are importable freely without any 'Restriction' may be imported by any person. However, if such imports require an Authorization, imports are permissible only on actual user condition unless it is specifically dispensed with by DGFT. Paragraph 2.10 of the Foreign Trade Policy reads as under:- 2.10 Actual User Condition Goods which are importable freely without any Restriction may be imported by any person. However, if such imports require an Authorisation, ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment to Paragraph 2.31 of the Foreign Trade Policy 2015-2020, vide Notification No.5/2015-2020 dated 07.05.2019, entry relating to photocopier machines/multi-function print and copying machine in Sl.No.1(a)(ii) was deleted and substituted with Sl.No.1(a)(ii) refurbished/reconditioned spares of refurbished parts of personal computers/laptops . 55. In Notification No.5/2015-2020 dated 07.05.2019, it was also clarified as under:- Policy Condition: As under Chapter 84 and 85 of ITC (HS) 2017: The import of Goods (new as well as second hand, whether or not refurbished, repaired or reconditioned) notified under the Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order, 2012, as amended from time to time, is prohibited unless they are registered with the Bureau of Indian Standards (BIS) and comply to the 'Labelling Requirements' published by BIS, as amended from time to time', or on specific exemption letter from Ministry of Electronics and Information Technology (Meity) for a particular consignment, as per provisions of Gazette Notification SO No. 3022 dated 11.09.2013. The importer shall re-export such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded vide Notification No.5/2015- 2020 dated 07.05.2019 reads as under:- Existing General Note No.2(C) Amended General Note No.2(C) (C)Import policy for electronics and IT Goods: The import of Notified Goods under the Electronics and Information Technology Goods (requirement of Compulsory Registration) Order 2012, as amended from time to time will be allowed subject to registration with the Bureau of Indian Standards (BIS), or on specific exemption letter from Ministry of Electronics and information Technology (MeitY) for a particular consignment as per provisions of Gazette Notification SO No.3022 dated 11.09.2013. Accordingly, import of unregistered/non-compliant notified products as in CRO 2012 as amended as prohibited Import consignments without valid registration with BIS shall be re-exported by the importer failing which Customs shall deform the goods and dispose them as scrap under intimation to Meity (C)Import policy for Electronics and IT Goods: The import of Goods (new as well as second hand, whether or not refurbished, repaired or reconditioned) notified under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds is defined in Section 2(33) of the Customs Act, 1962. Section 2(33) of the Customs Act, 1962 reads as follows:- 2(33) 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 65. All Electronic and IT Goods notified under the Electronic and IT Goods (Requirements of Compulsory Registration), 2012 as amended from time to time or Second hand Multi Functional Devices including printers are prohibited and were importable only against authorization subject to the condition laid down in the aforesaid Ministry of Electronics and Information Technology from 19.05.2019. The position under Paragraph 2.13 of the New Policy with effect from 01.04.2023 is not different. Under it, imports are restricted wherever an importer complies with the requirement of All Electronic and IT Goods notified under the Electronic and IT Goods (Requirements of Compulsory Registration), 2012. Imports are prohibited in case of import of unreg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt that the second hand and used multifunction printers/devices imported by the petitioner were prohibited under the provisions of the Foreign Trade Policy 2015-2020 as in force on the date of the respective Bill of leading on 13.09.2021 and on the date of filing of the respective Bill of Entries on 23.09.2021 for home clearance. However, there is relaxation under the new policy. 68. At the same time, it has to be kept in Section 11 of the mind that Customs Act, 1962 was amended by the Finance Act, 2018 (Act 13 of 2018). The Finance Act, 2018 (Act 13 of 2018) has been notified with effect from 29.03.2018. However, amendment to Section 11(3) of the Customs Act, 1962 as amended by the Finance Act, 2018 (Act 13 of 2018) has not been given effect to. This is evident from a reading of Section 59 of Finance Act, 2018 (Act 13 of 2018), which reads as under:- Extract from the Finance Act, 2018 No.13 of 2018 [28th March, 2018] Section 59. Amendment of Section 11. In the Customs Act, in Section 11, after sub-section (2), the following sub-section shall be inserted with effect from such date as the Central Government may, by notification in the Official Gaze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner of Customs vide order dated 11.08.2021 in S.L.P.(c).No.7565 of 2021. The goods were prohibited. They were ordered goods to be released under Section 125 of the Customs Act, 1962. Notification dated 01.04.2020 amending the Schedule of the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012 has merely clarified Multifunction Devices (MFDs) are basically printers with additional capabilities like Fax, Scan, Photocopy etc. Thus, it was clarified that they are covered under the category of Printers/Ploters notified vide Gazette Notification dated 3rd October 2012. 73. The subsequent amendment by way of clarificatory Notification dated 18.03.2021 to Ministry of Electronic and Information Technology in S.O.1248(E) merely added Printers/ Multi-Function Devices (MFD)/Plotters within the purview of the restrictions. The imports were althrough prohibited but weres allowed to be cleared on payment of appropriate redemption fine. 74. Therefore, these goods above can be ordered to be confiscated and released on payment of redemption fine as discretion is vested for the officer to release the goods under Section 125 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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