SAI GRAPHIC SYSTEMS Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) Since all the writ petitions arise out of common issue, they are taken up together and disposed of by a common order. In all the writ petitions, the petitioners had imported the second hand Digital Multifunction Print and Copying Machines of various models from their overseas suppliers. The petitioners had filed Bill of Entry and sought for clearance of the goods as Second Hand Capital goods under "Free importability" in terms of "Definitions' in Para 9.12 of Foreign Trade Policy and Hand Book of Procedures 2009-2014. Further, the petitioners engaged Chartered Engineer as per the Standing Order and in certain cases, examination was done and report was forwarded to the Custom House, Chennai confirming that the quantities and models declared was in conformity with the declarations and documents filed along with Bill of Entry. However, in certain cases, the respondents had not initiated any action in respect of examination of the goods. Further, in both the cases, despite the petitioners approaching the respondents seeking clearance of goods under "Free importability", no action was taken by the respondents for early clearance of the goods. Aggrieved by the same, the petitioners have come up before this Court with the above writ petitions.

(2.) Learned counsel appearing for the petitioners in all the writ petitions would submit that with regard to identical goods imported earlier, other importers filed writ petitions before this Court and the Hon'ble Single Judge of this Court in a batch of Writ Petitions in W.P. Nos. 21732 and 21733 of 2011 [ ANAND IMPEX v. COMMISSIONER OF CUSTOMS, 2012 281 ELT 178] and others considered the arguments of both parties and by order dated 27-2-2012 directed the authorities to release the goods in question which had already been inspected by the authorised engineers, on payment of the appropriate customs duty, subject to the adjudication process conducted as per the relevant provisions of law and in case relating to which the authorised chartered engineers had not inspected the goods in question, the customs authorities concerned shall direct the inspection of such goods before they are released and such goods may be directed to be released on payment of the appropriate customs duty and on the fulfillment of the conditions prescribed by law. Learned counsel also submits that these writ petitions are squarely covered by the learned Single Judge order. The above Single Judge order was also followed by the learned Judge of the Madurai Bench of the Madras High Court in W.P. No. 2401/2012 etc. batch dated 9-4-2012 and ordered release of goods. They further submitted that even the customs authorities had already released the goods in other assessee's cases in Chennai Port as well as Tuticorin Port. It is also submitted that the very same issue came up before the CESTAT, Bangalore Bench and the CESTAT in batch of Appeals vide Final Order No. 405 to 416 of 2011, dated 27-6-2011 [ , SHIVAM INTERNATIONAL v. COMMISSIONER OF CUSTOMS, COCHIN, 2012 286 ELT 545 (Tri.-Bang.)] had held that the Digital Multifunction Print and Copying Machines cannot be termed as Photocopier machiners to attract in the para of 2.17 of Foreign Trade Policy and had set aside the confiscation and penalties. Learned counsel also submitted that the petitioners are ready to pay the appropriate duty on the value assessed by the Chartered Engineer. They further argued that the inaction on the part of the 1st and 2nd Respondent in not ordering release of the goods under "Free Importability" as second hand capital goods would cause heavy loss along with mounting demurrage besides other incidental charges detrimental to the interest of the importers/petitioners. The learned counsel, thus prayed before this Court for issuing suitable direction to the Respondents to follow the provisions of law and release of goods.

(3.) K. Ravi Anantha Padmanaban, learned Standing Counsel appearing for the Customs submits that certain issues raised by the Customs Department were not considered by the learned Single Judge and the goods imported are hazardous in nature. He further contended that the goods imported falls within the definition of "Electrical and Electronic Assemblies" of Basel Entry B1110 of Part B of Schedule III of the Hazardous Rules, 2008. He further contended that the imported goods fall under "Restricted Category" and they require pre-import clearance as being hazardous. He further contended that the learned Single Judge had not considered the above issues but stated that the respondents were not in a position to show by sufficient evidence that the goods imported by the petitioner are mere Electrical and Electronic Assemblies falling under Basel No. B1110 of Part B of Schedule HI of the said Rules. He further submitted that they produced enough evidence before the learned Single Judge. He further contended that the learned Judge had not considered all the objections raised in the counter and also Minutes of 22nd meeting of Technical Review Committee dated 11-8-2011, Minutes of 24th meeting of Technical Review Committee dated 16-11-2011 and letter of the Director of Ministry of Environment and Forest dated 30-11-2011. He further stated that against the judgment of the learned Judge relied on by the petitioners, the Customs Department had filed Writ Appeal in W.A. No. 824 of 2012 etc. batch and the same is pending before the Division Bench of this Court.