@JUDGMENTTAG-ORDER
P.P.S. Janarthana Raja, J.@mdashSince all the writ petitions arise out of common issue, they are taken up together and disposed of by a common
order. In all the writ petitions, the petitioners had imported the second hand Digital Multifunction Print and Copying Machines of various models
from their overseas suppliers. The petitioners had filed Bill of Entry and sought for clearance of the goods as Second Hand Capital goods under
Free importability"" in terms of ""Definitions'' in Para 9.12 of Foreign Trade Policy and Hand Book of Procedures 2009-2014. Further, the
petitioners engaged Chartered Engineer as per the Standing Order and in certain cases, examination was done and report was forwarded to the
Custom House, Chennai confirming that the quantities and models declared was in conformity with the declarations and documents filed along with
Bill of Entry. However, in certain cases, the respondents had not initiated any action in respect of examination of the goods. Further, in both the
cases, despite the petitioners approaching the respondents seeking clearance of goods under ""Free importability"", no action was taken by the
respondents for early clearance of the goods. Aggrieved by the same, the petitioners have come up before this Court with the above writ petitions.
2. Learned counsel appearing for the petitioners in all the writ petitions would submit that with regard to identical goods imported earlier, other
importers filed writ petitions before this Court and the Hon''ble Single Judge of this Court in a batch of Writ Petitions in W.P. Nos. 21732 and
21733 of 2011 [ M/s. Anand Impex Vs. The Commissioner of Customs, (Seaport-Imports), Customs House, No. 60, Rajaji Salai, Chennai-
600001, The Additional Commissioner of Customs (Gr. 5A), Customs House, No. 60, Rajaji Salai, Chennai-600001 and The Assistant
Commissioner of Customs (Gr. 5A), Customs House, No. 60, Rajaji Salai, Chennai-600001, and others considered the arguments of both parties
and by order dated 27-2-2012 directed the authorities to release the goods in question which had already been inspected by the authorised
engineers, on payment of the appropriate customs duty, subject to the adjudication process conducted as per the relevant provisions of law and in
case relating to which the authorised chartered engineers had not inspected the goods in question, the customs authorities concerned shall direct the
inspection of such goods before they are released and such goods may be directed to be released on payment of the appropriate customs duty and
on the fulfillment of the conditions prescribed by law. Learned counsel also submits that these writ petitions are squarely covered by the learned
Single Judge order. The above Single Judge order was also followed by the learned Judge of the Madurai Bench of the Madras High Court in
W.P. No. 2401/2012 etc. batch dated 9-4-2012 and ordered release of goods. They further submitted that even the customs authorities had
already released the goods in other assessee''s cases in Chennai Port as well as Tuticorin Port. It is also submitted that the very same issue came
up before the CESTAT, Bangalore Bench and the CESTAT in batch of Appeals vide Final Order No. 405 to 416 of 2011, dated 27-6-2011 [
2012 (286) ELT 545 had held that the Digital Multifunction Print and Copying Machines cannot be termed as Photocopier machiners to attract in
the para of 2.17 of Foreign Trade Policy and had set aside the confiscation and penalties. Learned counsel also submitted that the petitioners are
ready to pay the appropriate duty on the value assessed by the Chartered Engineer. They further argued that the inaction on the part of the 1st and
2nd Respondent in not ordering release of the goods under ""Free Importability"" as second hand capital goods would cause heavy loss along with
mounting demurrage besides other incidental charges detrimental to the interest of the importers/petitioners. The learned counsel, thus prayed
before this Court for issuing suitable direction to the Respondents to follow the provisions of law and release of goods.
3. K. Ravi Anantha Padmanaban, learned Standing Counsel appearing for the Customs submits that certain issues raised by the Customs
Department were not considered by the learned Single Judge and the goods imported are hazardous in nature. He further contended that the
goods imported falls within the definition of ""Electrical and Electronic Assemblies"" of Basel Entry B1110 of Part B of Schedule III of the
Hazardous Rules, 2008. He further contended that the imported goods fall under ""Restricted Category"" and they require pre-import clearance as
being hazardous. He further contended that the learned Single Judge had not considered the above issues but stated that the respondents were not
in a position to show by sufficient evidence that the goods imported by the petitioner are mere Electrical and Electronic Assemblies falling under
Basel No. B1110 of Part B of Schedule HI of the said Rules. He further submitted that they produced enough evidence before the learned Single
Judge. He further contended that the learned Judge had not considered all the objections raised in the counter and also Minutes of 22nd meeting of
Technical Review Committee dated 11-8-2011, Minutes of 24th meeting of Technical Review Committee dated 16-11-2011 and letter of the
Director of Ministry of Environment and Forest dated 30-11-2011. He further stated that against the judgment of the learned Judge relied on by
the petitioners, the Customs Department had filed Writ Appeal in W.A. No. 824 of 2012 etc. batch and the same is pending before the Division
Bench of this Court.
4. Learned counsel appearing for respondents viz., Director General of Foreign Trade, Department of Commerce and the Secretary, Ministry of
Environment and Forests, the above mentioned 3rd and 4th Respondent filed their respective counters and submitted that the goods imported
require licence and also permission from the Ministry of Environment and Forests and also relied on recent Notification No. 1 (RE-2012)/2009-
2014, New Delhi dated the 5th June, 2012 and the same reads as follows:-
In exercise of powers conferred by Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 (No. 22 of 1992) read with paragraph
1.2 of the Foreign Trade Policy, 2009-2014, the Central Government hereby notifies the Foreign Trade Policy, 2009-2014 as updated upto 5th
June 2012 and incorporating the Annual Supplement. This shall come into force w.e.f. 5th June, 2012 Effect of Notification: The revised edition of
the FTP incorporating the changes made upto 5th June, 2012 will become operation.
He contended that in view of the above notification, export and import should be governed by sub-clause 2.171(a)(ii), of the Foreign Trade
(Development & Regulation) Act, 1992, wherein, it is stated that Photocopier machiners/Digital multifunction Print and Copying Machines fall
under ""Restricted Category"". He further submitted that therefore, the above said notification clarifies the position and it is applicable for the Foreign
Trade Policy 2009-2014. He further argued that the said notification was issued subsequently to the common order passed by the learned Single
Judge. He therefore, contended that in view of the above notification, the petitioners are not entitled for any relief.
5. Heard the learned counsel on either side and perused the documents available on record. It is pertinent to note that this Court considered all the
issues raised by the respondents in the common order dated 27-2-2012 in the aboved mentioned Writ Petition. The learned Single Judge in
paragraphs 11 to 13, had considered all the arguments of the respondents and the objections raised by them in their counter affidavit. Further, the
learned Single Judge had considered the minutes of the 24th meeting of the Technical Review Committee dated 16-11-2011 in his order. After
considering the submissions advanced by the counsel on either side, the learned Judge had given his findings in paragraphs 22 to 24 as follows:-
22. In reply, the learned counsels appearing for the petitioners had submitted that the claims made on behalf of the respondents, that the goods
imported by the petitioners are ""Hazardous Waste'', in the light of the Hazardous Waste (Management, Handling and Transboundary Movement)
Rules, 2008, cannot be sustained. The goods imported by the petitioners are freely importable goods. Therefore, no licenses or permissions are
required for the importing of such goods, as alleged on behalf of the respondents. Further, the goods imported by the petitioners are second hand
capital goods and they would not fall under the category of ''offending'' and prohibited goods, in terms of Section 111 of the Customs Act, 1952.
Further, the goods in question cannot be termed as Electrical or Electronic Assemblies falling under Basel No. B1110 part B of Schedule 3 of the
Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. In fact, the Electrical and Electronic Assemblies may
form a part of certain machines, instruments or equipments. However, they cannot be equated with the Digital Multifunction Print and Copying
Machines, which have been imported by the petitioners. Electrical and electronic parts cannot function by themselves, as a unit. They may only
constitute a component or a part of full-fledged machines or equipments.
23. In view of the submissions made by the learned counsels appearing for the petitioners, as well as the respondents, and on a perusal of the
records available, this Court is of the considered view that the used Digital Multifunction Print and copying Machines, imported by the petitioners,
cannot be said to fall under the category of ''Hazardous Waste'', as per Rule 3(1)(iii) of the Hazardous Waste (Management, Handling and
Transboundary Movement) Rules, 2008, read with Basel No. B1110 of part B of schedule III to the said Rules, 2008. The respondents have not
been in a position to show, by sufficient evidence, that the goods imported by the petitioners are mere Electrical or Electronic Assemblies falling
under Basel No. B1110 Part B of Schedule 3 of the said Rules.
24. It could be gathered, from the Minutes of the twenty fourth meeting of the Technical Review Committee, held at New Delhi, on 16-11-2011,
that there is no specific mention about the multifunction devices in the EXIM and therefore, the import of multifunction devices need to be placed in
the same category, as photocopying machines. In fact, it had been decided, in the said meeting, to request the Directorate General of Foreign
Trade to include multifunction devices in the restricted list, so that the Ministry of Environment and Forests could consider the applications for
import of such devices, in the light of the conditions provided in the Basel Convention Technical Guidelines on Transboundary Movements of
Electronic and Electrical waste'', after getting the necessary opinion from the expert committee. Thus, it is clear that the Digital Multifunction Print
and Copying Machines are not in the restricted category, at present.
A reading of the above paragraphs makes it clear that the learned Judge had given a categoric finding that the goods imported are not hazardous
waste and the goods do not come within the definition of ""Electrical and Electronic Assemblies"" of Basel Entry B 1110 of Part B of Schedule III of
the Hazardous Rules, 2008 and they are not coming under Restricted Category. In paragraph No. 22, the learned Judge considered the Chartered
Engineers Report and directed the authorities to release the goods in question which had already been inspected by the authorised engineers, on
payment of the appropriate customs duty, subject to the adjudication process conducted as per the relevant provisions of law and in case relating
to which the authorised chartered engineers had not inspected the goods in question, the customs authorities concerned shall direct the inspection
of such goods before they are released and such goods may be directed to be released on payment of the appropriate customs duty and on the
fulfillment of the conditions prescribed by law. Under these circumstances, this Court is of the view that the only fresh objection taken by the
respondents before this Court with respect to imported goods is that as per the recent Notification No. 1 (RE-2012)/2009-2014, New Delhi
dated the 5th June, 2012, they fall under ""Restricted Category"", which Notification contents are extracted above. Learned counsel for the
Respondents argue that the said notification operates retrospectively. However, a reading of the above notification makes it clear that the said
notification will come into force only with effect from 5th June 2012 in view of the specific wordings ""This shall come into force w.e.f. 5th June,
2012"". It is relevant to consider Sections 3 and 5 of the Foreign Trade (Development and Regulation) Act, 1992, and the same reads as follows:-
Section 3. Powers to make provisions relating to imports and exports.- (1) The Central Government may, by Order published in the Offical
Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increased exports.
(2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise
regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or
export of goods.
(3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited u/s
11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly.
Section 5. Export and import policy. - The Central Government may, from time to time, formulate and announce by notification in the Official
Gazette, the export and import policy and may also, in like manner, amend that policy.
From reading of Section 3, it is clear that the Central Government is empowered to make provisions with regard to development and regulation of
foreign trade and the same may be made by order published in the Official Gazette. The Central Government is further empowered to make
provision for prohibiting, restricting or otherwise regulating ""in all cases"" regarding import or export of goods. Section 5 deals with export and
import policy which, the Central Government may from time to time formulate and announce by notification in the Official Gazette. Any Notification
issued u/s 5 will operate prospectively. In the present case, Notification was issued u/s 5 of the Act. However, such Notification will come into
operation only after notifying in the Official Gazette. Further, the Notification will come into force only prospectively. Therefore, in the present
case, the Notification relied on by the counsel for the respondent will come into force only with effect from 5th June, 2012. In such circumstances,
Used Digital multifunction Print and Copying machines will fall under ""Restricted Category"" only with effect from 5th June 2012. The Supreme
Court in the case of Union of India (UOI) and Others Vs. Asian Food Industries, considered the scope of Section 5 and 3(2) of the Foreign Trade
(Development and Regulation) Act, 1992 and in paragraph 48, held as follows:-
48. The Delhi High Court, however, in our view correctly opined that the Notification dated 4-7-2006 could not have been taken into
consideration on the basis of the purported publicity made in the proposed change in the export policy in electronic or print media. Prohibition
promulgated by a statutory order in terms of Section 5 read with the relevant provisions of the policy decision in the light of sub-section (2) of
Section 3 of the 1992 Act can only have a prospective effect. By reason of a policy, a vested or accrued right cannot be taken away. Such a right,
therefore, cannot a fortiori be taken away by an amendment thereof.
In yet another judgment, in the case of Gem Granites v. Commissioner of Income Tax, T.N. reported in (2005) 1 Supreme Court Cases 289, the
Supreme Court considered the scope of amendment as to whether it comes into effect prospectively or retrospectively and in paragraph 14, the
Supreme Court held as follows:-
14. Every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. (See Keshavan
Madava Menon v. State of Bombay, AIR at p. 130) There is nothing in the wording of the 1991 amendment to suggest that it was to operate
retrospectively. Apart from the lack of any express words indicating such intention, there is nothing in the statute from which we can infer on any
principle of interpretation that the intention of Parliament was to give the amendment retrospective effect.
6. Thus, in the light of the principle enunciated by the Supreme Court in the above judgment and the relevant provisions of law, this Court makes it
clear that Notification No. 1 (RE-2012)/2009-2014, New Delhi dated the 5th June, 2012 will come into force with effect from 5th June 2012.
Therefore, the reliance made on the said Notification to state that the goods imported would come under Restricted Category cannot be pressed
into service in these writ petitions. Thus, any imported goods which comes under sub-clause 2.171(1)(ii) of the Foreign Trade (Development and
Regulation) Act, 1992 would fall under ""Restricted Category"" only after 5th June 2012. In the present case, import of goods have taken place
earlier i.e., before 5th June 2012. Therefore, such reliance made on the Notification will not help the Respondents in any manner to advance their
case. Under these circumstances, the common order passed in W.P. 21732 of 2001 etc. batch writ petitions dated 27-2-2012 would squarely
cover the present batch of writ petitions. The above judgment was also followed by the Madurai Bench of Madras High Court in W.P. (MD) Nos.
2401 of 2012 etc. batch case by order dated 9-4-2012, wherein, the learned Judge ordered for release of goods. In the light of the consistent
view taken by this Court in similar issues, this Court finds it appropriate to follow the same line of reasoning in these writ petitions also.
Accordingly, the writ petitions are allowed with a direction to the authorities to release the goods in question which had already been inspected by
the authorised engineers, on payment of the appropriate customs duty, subject to the adjudication process conducted as per the relevant provisions
of law and in case relating to goods not been inspected by authorised chartered engineers, the customs authorities concerned shall direct the
inspection of such goods before they are released and such goods may be directed to be released on payment of the appropriate customs duty and
on the fulfillment of the conditions prescribed by law. No costs. Consequently, connected miscellaneous petitions are closed. It is also made clear
that the impugned goods may be released as expeditiously as possible.
