COMMISSIONER OF CUSTOMS Vs. CITY OFFICE EQUIPMENT

JUDGEMENT

(1.) These appeals are directed against the common order dated 22.02.2019 passed in the writ petitions filed by the respondents/writ petitioners praying for issuance of a Writ of Mandamus to direct the appellants to assess and clear the goods imported by them, viz., Old and Used Digital Multifunction Print and Copying Machines (for brevity, "MPCMs") covered under the respective bills of entries upon payment of applicable duties of customs as determined by the Chartered Engineer, vide its report, and in terms of the judgment rendered by the Division Bench of the High Court Andhra Pradesh and Telangana at Hyderabad in W.P.No.2728 of 2018 dated 06.04.2018 which was accepted by the Central Board of Indirect Tax and Customs, New Delhi.

(2.) With the consent of the learned counsel on either side, W.A.No.1215 of 2019 is taken as the lead case.

(3.) The respondent imported MPCMs with accessories and attachments through the Chennai Customs classifying the goods under CTH 84433100. The rate of duties applicable was zero percent BCD as exempted under Serial No.2 of Notification No.24/2005-Cus., dated 01.03.2005 with zero percent surcharge and 18% IGST. The consignment was ordered for examination under first check appraisement system as they being second hand / used machinery. The goods were examined in the presence of the Chartered Engineer approved by the Director General of Foreign Trade (DGFT) and the reports were forwarded. The report stated that no major repairing or reconditioning was noticed by the Chartered Engineer who also confirmed that the goods are not e-wastes and non-hazardous. The Department took a stand that the import of the second hand machines are allowed for clearance subject to fulfilment of the following three conditions:- (i) Production of authorisation/import license issued by the DGFT authorities since the subject goods are restricted under para 2.31 of FTP 2015-20. (ii) Registration under the provisions of "Requirements for Compulsory Registration" with BIS as per the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order 2012, dated 07.09.2012 and subsequent orders dated 25.06.2013 and 07.11.2014 issued by MeitY. (iii) Compliance of procedures as per the provisions of Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 and E-Waste Management Rules, 2016. The appellant/Department stated that the goods imported by the respondent can be permitted for clearance only after production of authorisation/import licence issued by the DGFT authorities or any other notification or clarification issued by the DGFT and they have to fulfil the other two conditions, viz., BIS certificate and compliance of procedures as per the provisions of Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 and E-Waste Management Rules, 2016.