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(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.

4.The respondent/importer had complied with the condition as required under the Hazardous and other Wastes (Management & Transboundary) Rules, 2016 and E-Waste Management Rules, 2016. However, they did not produce the authorization/import licence issued by the DGFT authorities and BIS certificate as required under the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order 2012, dated 07.09.2012, and http://www.judis.nic.in subsequent orders dated 25.06.2013 and 07.11.2014 issued by the Ministry of Electronics and Information Technology (MeitY). Thus, the stand taken by the appellant/Department was that all the three mandatory requirements under the relevant Act/Rules have to be independently fulfilled for clearance of the second hand machinery. Faced with this situation, the respondent/writ petitioner sought permission to warehouse the goods in terms of Section 49 of the Customs Act, 1962 (hereinafter referred to as “the Act”) and they required time to produce necessary documents and fulfil the statutory compliance before seeking for clearance of the imported goods. The respondent after having warehoused the goods, submitted representation dated 06.07.2018 to release the goods provisionally against PD bond and cash deposit as per the percentage followed by the Custom House. In the said representation, the respondent contended that if the import of such second hand machinery is restricted/curtailed, it may result to closure of Indian Manufacturers and the “Make in India” policy of the Government may become an exercise in futility. With regard to the MeitY/BIS Guidelines – Rules, the respondent took a stand that the subject machines are not notified in the order and notification of MeitY and it would not be open to the custom authorities to insist for http://www.judis.nic.in registration of the subject machines in terms of the order dated 07.09.2012 and the notification of MeitY dated 07.11.2014.

http://www.judis.nic.in

8.The goods imported by the respondent/writ petitioner are second hand machinery. In terms of the policy guidelines issued by the DGFT, authorisation/import licence ought to have been obtained, as the goods are restricted for import in terms of Para 2.31 of the Foreign Trade Policy 2015-20.

9.Before the learned Writ Court, there was no challenge to the policy guidelines or the notification issued by MeitY. This has been noted by the learned Single Bench in para 20 of the impugned order. Thus, the respondent would have to reconcile with the fact that the goods imported by them require prior authorisation/import licence for being imported into India. Apart from the requirement to have an authorisation/import licence, there are two other requirements to be fulfilled by the importer for being entitled to seek clearance of the goods. The three conditions which we have noted above are independent and they are not optional, in other words, all the three conditions are required to be fulfilled. We say so because, in the batch of cases before us, none of the respondents/writ petitioners have either challenged the Foreign Trade Policy or the Statutory Notification issued by MeitY.

11.Before us, the respondent do not dispute the fact that they do not have authorisation/import licence, but the fact remains that the respondent/writ petitioner had applied for such licence and in most of the cases, the licence so requested has been rejected by MeitY. The particulars in this regard have been furnished by the authorities of DGFT in the form of a tabulated statement and by way of illustration, we take the case of the respondent in W.A.No.1215 of 2019, viz., M/s.City Office Equipment, which had filed the bill of entry on 15.06.2018. The information produced before us shows that their application for grant of http://www.judis.nic.in import licence was rejected as not recommended by MeitY vide OM No.16(19)/2018-IPHW dated 07.03.2018. This fact appears to have been not placed before the learned Writ Court, nor explicitly stated in the affidavit filed in support of the writ petition. This fact would not have come to light, but for this Court suo motu impleading the authorities of DGFT as a party to one of these appeals. In all fairness, the respondent/writ petitioner ought to have impleaded the authorities of the said two Departments, since there is a restriction for import of the subject goods and it is the authorities of DGFT and MeitY who would have a say in the matter, as the Customs Department is only an implementing authority. Thus, we would be fully justified in arriving at a conclusion that the respondent/writ petitioner was fully aware of the fact and that an import licence and appropriate BIS clearance certificate under the relevant order is a prerequisite and having been well acquainted with the legal position, they have applied for grant of such licence which was either rejected or not entertained or kept pending without orders. In such a factual position, we would be fully justified in holding that the appellant can insist upon orders for provisional release of the imported goods by raising a plea that the provisions of the Foreign Trade Policy and the various notification and orders are not http://www.judis.nic.in sustainable or inapplicable to the goods imported by them. In fact, this was rightly noted by the learned Single Bench in the impugned order that there is no such challenge to the Foreign Trade Policy or any notification or order.