Delhi High Court - Orders
Syndicate Innovations International ... vs The Office Of The Commissioner Of ... on 30 August, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~66
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10143/2022
SYNDICATE INNOVATIONS INTERNATIONAL LIMITED
THROUGH ITS DIRECTOR MR. ASHOK RAI ..... Petitioner
Through: Mr. Bhupesh Narula, Ms. Rinku
Narula, Mr. Anugrah Ekka, Mr.
Swetabh Sharma, Mr. Rishabh
Varshney, Advs.
versus
THE OFFICE OF THE COMMISSIONER OF CUSTOMS
THROUGH JOINT SECRETARY & ORS. ..... Respondents
Through: Mr. Anurag Ojha, Sr. SC with
Customs.
Ms. Nidhi Raman, CGSC with Mr.
Zubin Singh, Ms. Moin, Ms. Aneysha
Narula Adv. for DGFT
Mr. Shashi Paratap Singh, Ms.
Abhilasha Sharma, Advs. with Insp.
Vinay, Licensing Unit Delhi Police.
Mr. Kirtiman Singh, CGSC with Ms.
Kunjala Singh, Mr. Madhav Bajaj,
Mr. Yash Upadhayay, Advs. for R-4
with Mr. Sujeet Kumar, Mr. Anoop
Yadav.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 30.08.2022 Having heard learned counsels for parties at some length, the Court notes that the present writ petition gives rise to the following issues. The petitioner had approached this Court aggrieved by the fact that arms and parts of arms which had been imported by him pursuant to permission Signature Not Verified Digitally Signed By:NEHA Signing Date:30.08.2022 18:05:48 granted by the respondents were not being released.
The Bills of Entry with which the present writ petition is concerned are as follows: -
I. Bill of Entry no. 9037350 dated 09/06/2022 for 500 Frames. II. Bill of Entry no. 9038081 dated 09/06/2022 for 500 Slides and 1000 Magazines.
The petitioner had contended that as long as it held the requisite import permissions for import of Slides and Frames, there existed no legal impediment which would have justified the retention of those goods.
In accordance with the procedure prescribed under the Arms Rules, 2016 ["the 2016 Rules"], the Delhi Police appears to have undertaken an inspection of the consignments which form subject matter of the present writ petition and addressed a communication of 21 June 2022 to the Directorate General of Foreign Trade [DGFT]. It referred to the fact that on inspection it found that the Frames which had been imported had the following additional parts already fitted thereto: -
a. Hammer b. Catch magazine, c. Safety lock d. Safety lock support pin, e. Trigger Action Mechanism Part f. Trigger Similarly, in respect of Slides, it pointed out that the said article also had the following parts already fitted in each Slide:- i Firing Pin ii. Spring of firing pin Signature Not Verified Digitally Signed By:NEHA Signing Date:30.08.2022 18:05:48 iii. Lock plate of firing Pin iv. Extractor The case of the petitioner is that it holds a valid license FOR manufacture of a complete firearm in terms of Form VII which is held and possessed and that consequently it did not require any separate license or permission to manufacture or import components or parts of a firearm. It was pointed that even under the terms of the Foreign Trade Policy 2015- 2020 and the ITC (HS) Classification, these parts and components are not separately classified and would all fall for within the compendious entry of "Parts and accessories of articles of headings 93.01 to 93.04". Those entries pertain to military weapons and other firearms as specified therein.
It was additionally submitted that there is no justification for the respondents taking the position that a Slide or a Frame when imported should not be fitted with additional components of a firearm. Learned counsel for the petitioner contends that at least the Arms Act, 1959 ["the Act"] and the Rules frame thereunder do not contemplate or envisage the import of a Frame or a Slide shorn of a component or part of firearm embedded in them.
Reverting then to the communication which was addressed by the Delhi Police, the DGFT appears to have sought the opinion and advice of the Ministry of Home Affairs [MHA]. The MHA has opined that the import permission which had been granted would not cover parts or components of a firearm which were found fitted to the Frame and the Slide. It has additionally referred to the provisions contained in Rule 57(4) of the 2016 Rules. Both Ms. Raman and Mr. Singh, learned CGSCs have sought to justify the position as set out in the counter affidavit as well as the advice Signature Not Verified Digitally Signed By:NEHA Signing Date:30.08.2022 18:05:48 proffered by MHA. They would contend that the import permissions stood restricted to a Slide or the Frame alone and that consequently the import permission cannot be viewed as permitting the petitioner to import a Frame or a Slide with additional parts fitted to it.
It was also pointed out to the Court that the provisions contained in the 2016 Rules and more particularly Rule 88(2) thereof require an importer to obtain a requisite license in terms of Form X which stands placed and appended to those Rules. It was contended that no such license was obtained. Mr. Singh would contend that while the powers of the Licensing Authority under the Act may have been duly delegated to the DGFT in terms of the notification of 01 November 2018, that would not absolve the petitioner from the additional requirement of obtaining the requisite license for import under the 2016 Rules. Notwithstanding the above and since the import permission had been duly granted by the DGFT itself, Mr. Singh submits that the respondents shall consider the grant of that license ex-post facto in order to regularize the consignment which has been duly imported by the petitioner.
Mr. Singh has then relied upon the provisions made in Rule 57(4) of the 2016 Rules to contend that the moment parts of arms and ammunition which cannot possibly be manufactured locally are sought to be imported, the importer is duty bound to move the MHA by way of an application which would in turn obtain the opinion of the Department of Defense before granting an authorization for such import. According to Mr. Singh, this procedure too does not appear to have been followed or enforced by the respondents prior to the grant of import permission.
The Court notes that presently the question whether the components Signature Not Verified Digitally Signed By:NEHA Signing Date:30.08.2022 18:05:48 of arms which stand embedded to the Frame and Slides are of such a character or quality which cannot be manufactured locally is an issue which is yet to be examined by the respondents. This, the Court notes since the provisions of Rule 57(4) of the 2016 Rules would come into play only if it were found that those parts cannot be manufactured locally. The Court further notes that the Delhi Police while conducting the inspection had only raised a doubt with respect to the validity of the import on the ground that the Frames and Slide had other components of arms fitted to them. The issue of Rule 57(4) had been raised only by the MHA in its advisory to the DGFT. The Court also takes note of the submission of learned counsel for the petitioner who contended that while the aforesaid objections are being raised insofar as the consignment imported by the petitioner is concerned, various other importers have been permitted to import parts and components of firearms without being required to either obtain an import license as envisaged under Rule 88(2) or any authorization by the MHA as contemplated under Rule 57(4) of the 2016 Rules.
The additional grievance which is raised is that apart from the consignment which forms subject matter of the present writ petition, thirteen other consignments of the petitioner have also been detained as a consequence of the controversy which has arisen here.
The Court also takes note of the contention of learned counsel for the petitioner who submits that the expression "manufacturing" as defined in Rule 2(31) would clearly indicate that it is permissible for a person to manufacture or produce either a complete firearm or a component thereof. Referring then to the provisions contained in Rules 2(29) and 2(37) of the 2016 Rules as well as the Explanation added to the statutory forms, it was Signature Not Verified Digitally Signed By:NEHA Signing Date:30.08.2022 18:05:48 submitted that the amendments to those forms in terms of which various of components of firearms have come to be inserted and added, is merely to meet the contingency where a person may choose to manufacture or import only a particular component or a part of a firearm rather than the complete firearm. Viewed in that backdrop, learned counsel for the petitioner would submit that the perceived requirement of a separate license or import permission being obtained for those components also cannot be countenanced.
Bearing in the mind the aforesaid facts, the Court in the interim passes the following directions.
In light of the suggestions mooted by Mr. Singh, learned CGSC, let the competent authorities in the MHA as well as the DGFT jointly consider the issues which stand flagged in this order and place their stand before the Court within a period of two weeks from today.
The Court further requests the competent authorities in the DGFT, Customs, the Delhi Police as well as the MHA to attend to the grievance of the petitioner with respect to the thirteen other consignments which are stated to have been detained. For the purposes of enabling the respondents to undertake the aforesaid exercise, the petitioner shall provide the details of the thirteen other consignments which are stated to have been detained forthwith.
List again on 15.09.2022.
YASHWANT VARMA, J.
AUGUST 30, 2022/neha Signature Not Verified Digitally Signed By:NEHA Signing Date:30.08.2022 18:05:48