Gujarat High Court
M/S Radhika Traders vs Union Of India on 17 February, 2021
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/3780/2020 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 3780 of 2020
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M/S RADHIKA TRADERS Versus UNION OF INDIA ========================================================== Appearance:
GUPTA LAW ASSOCIATES for the PETITIONER(s) No. PARITOSH R GUPTA for the PETITIONER(s) No. for the RESPONDENT(s) No. MR DEVANG VYAS for the RESPONDENT(s) No. MR. PARTH H BHATT for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE ILESH J. VORA Date : 17/02/2021 IA ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1 By this Miscellaneous Civil Application, the applicants - original petitioners have prayed for the following reliefs:
"(A) Your Lordships may be pleased to admit and allow present application.
(B) Your Lordships may be pleased to direct opponents herein to allow clearance of used MFDs imported by the petitioner vide Bills of Entry No.4820593, 4820639, 4820640 all dated 09.09.2019.
(C) Your Lordships may be pleased to grant any other and further relief/s as may be deemed just and proper in the interest of justice and fitness of things."Page 1 of 5 Downloaded on : Fri Feb 19 05:44:16 IST 2021
C/SCA/3780/2020 IA ORDER 2 This Court disposed of the main matter i.e. the Special Civil
Application No.3780 of 2020 vide order dated 11th January 2021 in the following terms:
"10 Mr. Devang Vyas, the learned Additional Solicitor General of India appearing with Mr. Parth Bhatt, the learned Standing Counsel for the respondent would submit that this writ application may be disposed of by issuing appropriate directions to the respondent No.2 to decide the application filed by the writ applicant under Section 110A of the Act.
11 Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that the respondent No.2 should immediately look into the application dated 3rd October 2019 filed by the writ applicant (Annexure : 'F' to this writ application) and take an appropriate decision as regards the plea for provisional release of the goods. Such decision shall be taken within a period of eight days from the date of receipt of the writ of this order.
12 We may only clarify that while taking an appropriate decision as regards provisional release of the detained goods, the respondent No.2 shall keep in mind the Regulation 6(1)(l) of the Handling of Cargo in Customs Area Regulations, 2009. Regulation 6(1)(l) reads thus:
"Regulation 6. Responsibilities of Customs Cargo Service provider. (1) the Customs Cargo Service provider shall ... ...
(l) subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive Officer or examining officer, as the case may be;"
13 Keeping the larger issue as regards the right to import such goods open subject to the final outcome of the litigation before the Supreme Court, appropriate orders for provisional release shall be passed accordingly.
14 The respondent No.2 shall also bear in mind the order passed by the Supreme Court in the case of Union of India vs. M/s. R. R. Marketing and others [Special Leave to Appeal (C) No.17307 of 2019 decided on 18th September 2020] and also take into consideration the order passed by the Punjab and Haryana High Court in the case of M/s.
Page 2 of 5 Downloaded on : Fri Feb 19 05:44:16 IST 2021C/SCA/3780/2020 IA ORDER Genuine Copier Systems vs. Union of India and others [CWP No.28333 of 2019 (O&M) decided on 5th November 2019].
15 With the above, this writ application stands disposed of."
3 Pursuant to the aforesaid order passed by this Court, the Joint Commissioner has passed an order dated 25th January 2021 declining the provisional release of the goods holding as under:
"7 Therefore, in light of the provisions of DGFT Notification No. 05/201520 dated 07.05.2019 read with Circular No. 01/2019 dated 02.05.2019 & Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012 dated 07.09.2012, Old & Used MultiFunctional Devices (MFDs) are prohibited unless they are registered with Bureau of Indian Standards' (BIS) and comply to the 'Labeling 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.
8. The guidelines for provisional release of seized goods pending adjudication under Section 110A of the Customs Act, 1962 has been issued vide CBIC Circular No. 35/2017Customs dated 16.08.2017 vide which provisional release shall not be allowed in the following cases:
(i) Goods prohibited under the Customs Act, 1962 or any other Act for the time being in force;
(ii) Goods that do not fulfill the statutory compliance requirement/obligations in terms of any Act, Rule, Regulation or any other law for the time being in force;
The subject goods are prohibited vide DGFT Notification 5/201520 under the PT (B&R) Act 1992 and do not fulfill statutory requirements laid, vide E&ITG (Requirements for Compulsory Registration) Order, 2012under the Bureau of Indian Standards Act, 1986 & the BIS Rules.
9. In Union of India Vs. M/s. R. R. Marketing and others [Special Leave to Appeal (C) No. 17307 of 2019] the Hon'ble Supreme Court vide order dated 18.09.2020 allowed the writ on the ground that no notification has been issued requiring registration of MFDs before import by M/s. R. R. Page 3 of 5 Downloaded on : Fri Feb 19 05:44:16 IST 2021 C/SCA/3780/2020 IA ORDER Marketing, who had imported the old & used MFDs in July 2017, before DGFT Notification No. 05/201520 dated 07.05.2019 & MeitY Circular No. 01/2019 dated 02.05.2019.
Therefore, at the time of import by M/s. R. R. Marketing, Old & used MFDs were not prohibited under DGFT Notification No.05/201520 dated 07.05.2019. But in the present case, M/s. Radhika Traders imported old & used MFDs in Sep., 2019 i.e. after DGFT Notification No.05/201520 dated 07.05.2019 & MeitY Circular No.01/2019 dated 02.05.2019 and hence old & used MFDs imported by M/s. Radhika Traders are prohibited goods. Thus, the ratio of the above judgement of the Hon'ble Supreme Court is not applicable in this case.
10 Further, in the case of M/s. Genuine Copier Systems vs. Union of India & others [CWP No.28333 of 2019 (O & M)], the Hon'ble High Court of Punjab & Haryana has directed to let the goods be released subject to deposit of security (except bank guarantee) as per the revised value given by the Custom Authorities or any penalty etc. as decision of the Hon'ble Supreme Court in the case of Union of India vs. M/s. R. R. Marketing and others [Special Leave to Appeal (C) No.17307 of 2019] was pending. However as discussed in above para, Union of India vs. M/s. R. R. Marketing and others case has since been decided by the Hon'ble Supreme Cort and the same has not been found applicable in this case of M/s. Radhika Traders.
11 In view of the above, 679 old & used MFDs imported by M/s. Radhika Traders vide Bills of Entry bearing no.4820640, 4820639 & 4820593 all dated 09.09.2019 and IGM bearing No.2234197 dated 12.09.2019 are prohibited goods and their provisional release cannot be allowed in terms of CBIC circular No.35/2017Customs dated 16.08.2017. However, M/s. Radhika Traders have the option to reexport these prohibited goods (679 old & used MFDs) as per DGFT Notification No.5/201520 dated 07.05.2019."
4 We have heard Mr. Paritosh Gupta, the learned counsel appearing for the applicants.
5 Prima facie, we are of the view that Mr. Shankhesh Mehta, the Joint Commissioner is in contempt of this Court. Mr. Mehta should not have sat in appeal over the order passed by this Court. He could not Page 4 of 5 Downloaded on : Fri Feb 19 05:44:16 IST 2021 C/SCA/3780/2020 IA ORDER have been wiser than what has been observed by this Court in the order dated 11th January 2021. If there was any doubt in his mind as regards the correctness of the order of this Court, then he should have consulted Mr. Vyas, the learned Additional Solicitor General of India and Mr. Vyas, in turn, could have preferred an appropriate application before this Court seeking review or modification of the order. However, the Joint Commissioner on his own could not have taken the view that the goods cannot be released. Mr. Mehta, the Joint Commissioner owes an explanation in this regard.
6 Let Notice be issued to the opponents, returnable on 24th February 2021. The opponents shall be served directly through Email. Regular Direct Service is also permitted.
(J. B. PARDIWALA, J) (ILESH J. VORA,J) CHANDRESH Page 5 of 5 Downloaded on : Fri Feb 19 05:44:16 IST 2021