Madras High Court
The Commissioner Of Customs vs M/S. Rani Sati Coal Depo on 18 June, 2018
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.06.2018
CORAM:
THE HON'BLE MR. JUSTICE S.MANIKUMAR
and
THE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
W.A.No.1236 of 2018
and C.M.P.No.10190 of 2018
1. The Commissioner of Customs,
(Seaport Import), Customs House,
60 Rajaji Salai, Chennai 600 001.
2. The Additional Commissioner of Customs,
Group 5A, Custom House,
60 Rajaji Salai, Chennai 600 001. ... Appellants
Vs.
M/s. Rani Sati Coal Depo
Rep. by its Proprietor,
Mr.Ashok Kumar Sultana,
Plot No.167, Mahandi Vihar,
Cuttack 753 003,Orissa. ... Respondent
PRAYER: Writ Appeal has been filed under Clause 15 of Letters Patent against the order dated 19.09.2007 passed in W.P.No.29053 of 2007.
For Petitioner : Mr.V.Sundareswaran
- - - - -
J U D G M E N T
(Judgment of the Court was made by SUBRAMONIUM PRASAD, J.) This Writ Appeal has been filed by the Customs authorities emanating from a common order passed by a single Judge of this Court in W.P.No.29053.
2. The petitioner in W.P.Nos.29053 of 2007 imported a large number of used and old photocopiers, from abroad. M/s. Rani Sati Coal Depo, petitioner in W.P.No.29053 of 2007, imported 250 units under bill of entry 522889 fated 06.08.2007, value of which was declared at $ 35,100.
3. The Customs authorities asked the importer petitioners to justify the declared price, which the importers failed to do. The goods were therefore not cleared for entrance. The customs authorities noted that under para 2.17 of the Exim Policy as amended by the DGFT notification 31/2005 dated 19.10.2005, import of used photocopiers are allowed only against a specific license. Since the petitioner did not have any license, the machines were liable for confiscation and fine.
4. During the pendency of the proceedings the importers approached this Court praying for the release of the machines.
5. The learned single Judge noted the willingness of the petitioner to pay the enhanced value along with a redemption fine of 35% of the enhanced amount. The learned single Judge, thought this proper and directed the respondent authorities to release the goods of the petitioner, on the payment of the enhanced duty and the 35% as penalty and disposed of the Writ Petitions.
6. In the instant appeal, order of the learned single Judge has been assailed on the ground that the learned single Judge failed to realise, that the petitioners did not have the requisite license for the import of goods, as envisaged under para 2.17 of the Foreign Trade Policy.
7. When the appeal came up for hearing, the learned counsel for the revenue submitted that the the issues raised in the appeals are squarely covered by a decision of this Court in Commissioner of Customs Vs. M/s.City Office Equipment reported in 2014(302) ELT 212 (Mad).
8. In the said judgment, the Division Bench of this Court has held as under:-
21. Thus the procedure on import of second hand capital goods is governed by clause 2.33 of the Handbook of Procedures (Vol. I). As may be seen from the heading the reference is about second hand capital goods in general alone and is, not a separate paragraph to deal exclusively with second hand capital goods falling under restricted category. Thus, dealing with the procedure on the import of second hand capital goods, it specifically refers to some of those restricted items of second hand capital goods, namely, personal computers/laptops, which could be imported only subject to the conditions specified in the paragraph. Thus, while clause 2.33 allows free import of second hand capital goods, including refurbished/reconditioned spares as per sub-clause (a) of clause 2.33, one can say from the clear terms of the provision that there is no distinction made between second hand capital goods and second hand refurbished/reconditioned capital goods for purposes of free import. Except for those specifically mentioned restricted category of second hand capital goods which are not allowed free import, all other second hand capital goods including other enumerated restricted category of second hand capital goods are permitted free import. Thus, with no distinction maintained between other restricted category of second hand capital goods and second hand capital free goods, we do not find any good ground to read in clause 2.33, a restriction on the free import of second hand digital multifunction print and copier machines. Thus reading sub-clause (a) to clause 2.33, if there is a restriction to be read on free import, it is only with reference to personal computers/laptops from among the restricted category of second hand capital goods group, which means, other restricted category under second hand capital goods group, specified in paragraph 2.17, namely, photocopier machine/digital multifunctional printing and copying machines, air conditioners, diesel generating sets, like other goods falling under free category, are permitted to be imported freely. Under sub-clause (b) of clause 2.33, there is a specific reference to the import of second hand computers, including personal computers/laptops and refurbished/reconditioned spares thereof, which suffer restricted import. Sub-clause (c) of clause 2.33 is with reference to import of refurbished/reconditioned spares of capital goods, such as what is covered under sub-paragraph (b), namely, personal computers/laptops. Thus, the refurbished/reconditioned spares of capital goods could be allowed for import only on production of chartered engineer's certificate that such spares have at least 80 per cent, of residual life of original spares. Thus, with classification of goods carrying conditions on import specifying the manner of import, the import policy regime on second hand capital goods dealt with under paragraph 2.17 is laid down in clear terms in clause 2.33 of the Handbook of Procedures (Vol. I) that there could be no confusion in the matter of understanding which type of second hand capital goods goes for free import and what goes for import with conditions. As already noted, the Handbook of Procedures' (Vol. I) also specifically deals about refurbished/reconditioned spares of capital goods (clause 2.33(c)). Thus, even though photocopier and digital multifunction print and copying machines fall under restricted category in second hand capital goods group, yet, going by the only condition specified in clause 2.33 of the Handbook of Procedures (Vol. I), we do not find any justifiable ground to accept the contention of the Revenue that there exists a conflict between paragraph 2.17 of the Foreign Trade Policy and, clause 2.33 of the Handbook of Procedures (Vol. I). Thus, when paragraph 2.17 of the Foreign Trade Policy specifically refers the circumstances or the conditions under which the import policy regime is laid, in the absence of any other restriction specified anywhere either in the policy or in the Handbook of Procedures (Vol. I) with reference to any of those specified restricted category of second hand capital goods--photocopier machines and digital multifunction printing and copying machines as falling in line with personal computers and laptops, the mere instance of photocopier and digital multifunction printing and copying machines being restricted category of second hand capital goods, cannot bring them under any assumed restriction on par with personal computers/laptops for the purpose of imports into this country. Contrary to the assertion of the Revenue, the import policy regime, as spoken to in paragraph 2.17, touches on compliance of conditions alternative and not on cumulative basis. In the circumstances, we reject the plea of the Revenue."
9. This decision of the Court squarely covers the issue at hand and in view of the same, the appeal stands dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
(S.M.K., J.) (S.P., J.)
18.06.2018
asi
Index : Yes/No
Internet : Yes/No
Speaking Order : Yes/No
S.MANIKUMAR, J.
and
SUBRAMONIUM PRASAD, J.
asi
W.A.No.1236 of 2018
and C.M.P.No.10190 of 2018
18.06.2018