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Judgment
15 paragraphs · 2,041 wordsHonourable Mr. Justice T. Raja
The petitioners have filed the writ petitions seeking a writ of mandamus, directing the 1st and 2nd respondents to release the goods viz, 122 Units of old and used Digital Multifunction Print and Copying Machines of various models and 22 Units (viz., 2 item of 11 Units) of Old and Used Digital Wide Format Printing Machines with Scanner and Accessories imported vide Bills of Entry Nos. 4557554, 4122943 and 4752085 dated 06.09.2011, 20.07.2011 and 26.09.2011 respectively under free as second hand capital goods in terms of Para 2.17 read with definitions under 9.12 of Foreign Trade Policy 2009-2014 without imposing any restriction in the absence of specific restriction in Para 2.17 of Foreign Trade Policy and in Para 2.33 of Hand Book of Procedures 2009-2014.
The learned counsel for the petitioners submitted that the petitioners'' Company have imported 122 Units of Old and Used Digital Multifunction Print & Copying Machines and 22 Units (viz., 2 item of 11 Units) of Old and Used Digital Wide Format Printing Machines with Scanner and Accessories at USD 26,125.00 (C&F), 8,350.00 (C&F) at Tuticorin respectively. These goods were shipped from M/s. Lucky Speed Ltd., Hong Kong, M/s. Wide Format Engines LLC, U.S.A. and M/s.Copier Exporter Inc., Dallas respectively vide invoice Nos. LSL-265-11-I, 051311 and 1695-11-I dated 16.08.2011, 13.05.2011 and 29.07.2011 respectively, for which, the petitioners'' Company have also filed Bills of Entry Nos. 4557554, 4122943 and 4752085 dated 06.09.2011, 20.07.2011 and 26.09.2011 by claiming clearance of the goods for Home Consumption under freely importable category.
The learned counsel appearing for the petitioners further submits that after the above mentioned goods reached Tuticorin Port, the respondents have examined the above goods and found to be correct in quantity and description as declared by the petitioners. Subsequently, re-inspection was also done to value and identify the goods by Chartered Engineer M/s.Inspectorate Griffith India Pvt. Ltd., Chennai. The said Chartered Engineer carried on the inspection in the presence of the Customs Officers and certified in his inspection report, dated 23.09.2011, 22.08.2011 and 01.10.2011 respectively, stating that the goods are Old and Used Digital Multifunction Print & Copying Machines and also assessed the total C&F value as USD 38,335.00 and USD 39,955.00 as against the actual transaction value of USD 26,125.00 C&F and USD 27.405.00 C&F and the goods are used Digital Wide Format Printing Machines with Scanner and Accessories and also assessed the total C&F value as USD 12,700.00 as against the actual transaction value of USD 8,350.00 C&F, Tuticorin. With the above submissions, he further added that the respondents are not permitting the petitioner to release the imported goods, on the ground that they are e-waste, which has compelled them to come to this Court, seeking a direction to the respondents 1 and 2 to release the goods covered by Bills of entry Nos. 4557554, 4122943 and 4752085 dated 06.09.2011, 20.07.2011 and 26.09.2011 respectively.
The learned counsel for the petitioners further submitted that once the goods have arrived the Tuticorin Port and subsequently, a Chartered Engineer, who is a Panel Chartered Engineer of the Tuticorin Port has carried out an inspection in the presence of the Customs Officer and given a certificate, certifying that all the machines by outlook appear to be operational and functions as intended, the consignment cannot be considered any more as e-waste or hazardous waste. Therefore, the respondents cannot refuse to release the goods. While adding his submissions, it was further submitted that in a similar circumstances, when a similar and an identically Old and Used Digital Multifunction Print & Copying Machines were imported, on objection from the same Customs authorities, similar Writ Petition (MD) No.10817 of 2011 was filed before this Court. By order dated 30.09.2011, this Court has directed the same authorities to release the goods with a condition to deposit 25% of the enhanced value, apart from the duty payable on the enhanced value and on complying with the above conditions, the respondents 1 and 2 were directed to release the goods forthwith. However, liberty was also given to the respondents to proceed further with the adjudication proceedings in accordance with law and the petitioner therein was also directed to co-operate in the above said process. This order was not challenged by the respondents as the respondents have duly complied with the said order. Having complied with the said similar order, the learned counsel appearing for the petitioners sought for a similar direction to the respondents 1 and 2 to release the goods in the above terms and conditions mentioned by this Court in the above mentioned Order.
Opposing the said prayer, the learned counsel appearing for the respondents vehemently submitted that the goods in question imported by the petitioners are not usable since they are all hazardous waste as per Hazardous Waste (Management, Handling & Transboundary) Rules, 2008 and they need import permit from DGFT and also from Ministry of Environment and Forest as per Circular No. 27/2011 dated 04.07.2011 and till then, they cannot be allowed to release the goods. Further the goods in questions are covered under the B-1110 & B-3010 of Part B of Schedule III to Hazardous waste (Management, Handling & Transboundary) Rules, 2008. As the petitioner has not complied with the above conditions, the present prayer cannot be considered positively.
The second submission made by the learned counsel appearing for the respondents states that till now no certificate has been obtained either by the Pollution Controller or from the Chartered Engineer, therefore,it is not legally possible for the respondent Department to know whether the petitioners company have imported 122 Units of Old and Used Digital Multifunction Print & Copying Machines and 22 Units (viz., 2 item of 11 Units) of Old and Used Digital Wide Format Printing Machines with Scanner and Accessories. The said submissions do not appear to be correct. Because, the respondents herein have directed the petitioner to arrange for an inspection to determine the value and identify the goods by their own Chartered Engineer and as per their order, the Goods were examined by their Chartered Engineer M/s.Inspectorate Griffith India Private Ltd., in the presence of the Customs Officers.
The typed set of papers filed by the petitioners includes the certificates, dated 23.09.2011, 22.08.2011 and 01.10.2011 respectively, issued by the Chartered Engineer, who is also from the Tuticorin Customs Empanelment and a relevant portion of the said certificate issued by the Chartered Engineer is extracted here-under for a perusal:
About E-Waste or Hazardous Waster of The Consignment: All the machines by outlook appear to be operational and functions as intended. These machines are comprised of material compositions predominantly mechanical in addition to minor percentages of electro-mechanical, optico-mechanical and thermo-mechanical. As such at preset consignment cannot be considered as e-waste or hazardous waste.
The mere reading the above certificate clearly shows that there was an inspection carried out by the Chartered Engineer from the Tuticorin Customs Empanelment in the presence of the customs officers and as per the certificate, it is also seen that all the machines imported by the petitioners are functional, operational and cannot be considered as e-waste or hazardous one. If at all the respondents-Customs Authority are very serious about their decisions in arresting the machines to be dumped on the ground that they are all e-waste, they could have appointed any other responsible officers from the Pollution Control Board immediately after the date of arrival of the ship, but till now no such steps have been taken, since the goods have reached the Tuticorin Port in the month of August 2011. Moreover, when the respondent''s Chartered Engineer also has certified the goods in question by their certificates dated 23.09.2011, 22.08.2011 and 01.10.2011 respectively, as not e-waste and it is not open to the respondents to show that the goods in question imported by the petitioners are e-waste.
When a similar consignments with the old and used Digital Multifunction (Print and Copying) Machines were imported, on a similar objection raised by the respondent, a writ petition was filed for provisional release of the goods on payment of 25% of the value inclusive of Counter Vailing Duty (CVD), a Single Judge of this Court in M.P. No. 1 of 2009 in W.P. No. 18959 of 2009 directed the release of machines on payment of 25% of the enhanced value inclusive of Counter Vailing Duty. As against that when a writ appeal No.1508 of 2009 was filed, upholding the order passed by the learned Single Judge, a learned Division Bench of this Court, in order dated 21.10.2009 passed in W.A. No. 1508 of 2009 The Commissioner of Customs and another V. M/s.Polycraft Exports (P) Ltd., and another, directed the Commissioner of Customs to release the old and used Digital Multifunction Machines on payment of 25% of the enhanced value plus 12 1/2% of the Chartered Engineer''s value or enhanced value by way of bank guarantee.
In one another similar case, when a similar prayer was made to release the goods viz.,104 old and used Digital Multifunction Print and Copying Machines of various models imported vide Bill of Entry No.926685, dated 08.09.2009, under Free as Second Hand Capital goods in terms of para 2.17 read with Definitions under 9.12 of Foreign Trade Policy 2009-2014 without imposing any restriction in the absence of specific restriction in para 2.17 of Foreign Trade Policy and in Para 2.33 of Hand Book of Procedure 2009-2014 in W.P.(MD) No. 9914 of 2009 and M.P.(MD) No.1 of 2009 a learned Single Judge of this Court, by order dated 04.11.2009, issued a direction to pay 25% of the enhanced value, apart from furnishing bank guarantee to the extent of 12.5% on the enhanced value. On complying with the above said conditions, further direction was issued to release the goods with liberty to the Customs authority to proceed in accordance with law.
In view of the above, if I look at the case on hand the petitioners'' consignment has reached the Port of Tuticorin on 06.09.2011, till date the respondents have not come forward to issue even the show cause notice seeking explanation thereon. When the respondents till date have not issued a formal show cause notice, it is not permissible to treat the imported goods as restricted goods. For, such an action of the respondents are running contrary to Section 17 of the Customs Act 1962. As per Section 17 of the Customs Act, the importer is entitled to have the goods examined, assessed and cleared without undue delay. The Customs authorities are under statutory obligation to perform their duties without delay, so that the importer or the exporters need not have to pay unnecessary demurrage charges. Even in cases where the importer is not in a position to file all the documents that are required for assessment of the goods, Section 18 of the Customs Act 1962 enables the authorities to make a provisional assessment pending production of the necessary documents by the importer. In the present case, admittedly all the documents have been furnished that are necessary for processing and assessing the Bill of Entry and ordering the release of goods of the petitioners.
Under these circumstances, by taking note of various orders passed by this Court in similar circumstances, a similar direction needs to be granted in the present cases. Accordingly, a direction is issued to the respondents 1 and 2 to release the goods viz., 122 Units of Old and Used Digital Multifunction Print & Copying Machines and 22 Units (viz., 2 item of 11 Units) of Old and Used Digital Wide Format Printing Machines with Scanner and Accessories under the Bills of entry Nos. 4557554, 4122943 and 4752085 dated 06.09.2011, 20.07.2011 and 26.09.2011, on the petitioners depositing 25% of the enhanced value, apart from the duty payable on the enhanced value and on complying with the above said conditions, respondents are directed to release the goods forthwith. Liberty is given to the respondents to proceed further with adjudication proceedings, in accordance with law and that the petitioners are directed to cooperate with the above said process.
With the above observations, these writ petitions are disposed of. Consequently, connected miscellaneous petitions are also closed. No costs.