w w w . L a w y e r S e r v i c e s . i n



Commissioner of Customs C.R. Building, Bangalore v/s Digital Express, Telangana


Company & Directors' Information:- A T EXPRESS INDIA LIMITED [Strike Off] CIN = U93030DL2009PLC193660

Company & Directors' Information:- N R EXPRESS PRIVATE LIMITED [Active] CIN = U63040WB1999PTC089271

Company & Directors' Information:- Z EXPRESS DIGITAL PRIVATE LIMITED [Active] CIN = U52100OR2021PTC036332

Company & Directors' Information:- DIGITAL-X INDIA PRIVATE LIMITED [Strike Off] CIN = U72200KA1987PTC008715

Company & Directors' Information:- C.R & D CO. (INDIA) PVT. LTD. [Under Liquidation] CIN = U36991WB1979PTC031882

Company & Directors' Information:- P J EXPRESS PRIVATE LIMITED [Strike Off] CIN = U63040WB1995PTC075515

Company & Directors' Information:- G M S EXPRESS PRIVATE LIMITED [Active] CIN = U64120KA2006PTC040159

Company & Directors' Information:- U C EXPRESS PRIVATE LIMITED [Strike Off] CIN = U64120MH2004PTC148038

Company & Directors' Information:- V & S DIGITAL PRIVATE LIMITED [Strike Off] CIN = U72900UP2013PTC060410

Company & Directors' Information:- R R EXPRESS PRIVATE LIMITED [Active] CIN = U97000DL2014PTC267284

Company & Directors' Information:- N Y DIGITAL PRIVATE LIMITED [Strike Off] CIN = U72300DL2007PTC157464

Company & Directors' Information:- S F EXPRESS PRIVATE LIMITED [Active] CIN = U64120DL2015PTC279322

Company & Directors' Information:- J. K. EXPRESS PRIVATE LIMITED [Strike Off] CIN = U63090GJ2012PTC070288

Company & Directors' Information:- S A E DIGITAL PRIVATE LIMITED [Active] CIN = U72900DL2021PTC380677

Company & Directors' Information:- D K G EXPRESS PRIVATE LIMITED [Strike Off] CIN = U15499UP1982PTC005721

Company & Directors' Information:- P AND G EXPRESS PRIVATE LIMITED [Strike Off] CIN = U64120MH2003PTC139461

Company & Directors' Information:- BUILDING COMPANY LIMITED [Dissolved] CIN = U99999MH1919PTC000616

Company & Directors' Information:- BUILDING COMPANY OF INDIA LIMITED [Not available for efiling] CIN = U99999MH1942PTC003646

Company & Directors' Information:- DIGITAL INDIA CORPORATION [Active] CIN = U72900MH2001NPL133410

    Central Sales Tax Appeal No. 5 of 2020, 4 of 2020

    Decided On, 03 September 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA & THE HONOURABLE MR. JUSTICE RAVI V. HOSMANI

    For the Appearing Parties: Jeevan J. Neeralgi, Pramod N. Kathavi, Advocates.



Judgment Text

B.V. Nagarathna, J.1. Though these appeals are listed to consider I.A.No.4/2020 filed by the respondents seeking vacating of the interim order granted by this Court, with consent of learned counsel appearing on both sides, they are heard finally.2. The Revenue through Commissioner of Customs, Bangalore 1, has assailed the common order dated 20/12/2019, passed by the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, [hereinafter, referred to as "the Tribunal", for the sake of convenience], in File Nos.C/20971/2019 and C/20974/2019. By the said order, the Tribunal remanded the matter for the purpose of adjudicating upon the redemption fine and penalty to be paid by the respondent in respect of the goods imported, in terms of Section 125 of the Customs Act, 1962 [hereinafter, referred to as "the Act", for the sake of brevity] and to complete the process of the said adjudication within a period of two weeks from the date of receipt of the said order. Being aggrieved by the said order issued by the Tribunal, these appeals have been filed by the Revenue.3. Briefly stated, the facts in CSTA.No.5/2020 are that the respondent in this appeal imported 104 units of used digital multifunctional printers/devices ("MFDs") of various brands with standard accessories and attachments of declared value of Rs.33,01,195/-. According to the Chartered Engineer, value of the said goods is Rs.41,23,213/-. The Department was of the opinion that the declared value did not conform to the transaction value in terms of Section 14 of the Act and liable for confiscation in terms of Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (hereinafter referred to as "the Rules" for the sake of convenience) and the value had to be re-determined under Rule 9 of the said Rules. The Department was also of the opinion that the product MFDs imported by the respondent did not conform to the standards prescribed under Rule 13(2)(a), (b) and (c) of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (hereinafter referred to as "the H&OW Rules" for the sake of brevity). The contention of the Department was also that the imported goods was also not as per the standard prescribed by the Indian Quality Standards under the import policy and the compulsory registration order was not obtained from the Bureau of Indian Standards ("BIS", for short) nor was any exemption certificate produced. Show-cause notice was issued as to why the goods ought not to be seized and penalty imposed. The Original Authority passed an order in Original No.78/2018 dated 28/12/2018. Being aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), which was also dismissed. Hence, respondent preferred an appeal before the Tribunal, which has passed the impugned order by setting aside the absolute confiscation and remanded the matter for determination of redemption fine and penalty. Consequently, by the common impugned order dated 20/12/2019, the appeal filed by the respondent herein was disposed of with the aforesaid relief.4. Briefly stated, the facts in CSTA.No.4/2020 are that the respondent in this appeal imported 104 units of used digital multifunctional printers/devices ("MFDs") of various brands with standard accessories and attachments of declared value of Rs.15,13,655/-. According to the Chartered Engineer, value of the said goods is Rs.18,53,945/-. The Department was of the opinion that the declared value did not conform to the transaction value in terms of Section 14 of the Act and liable for confiscation in terms of Rule 12 of the Rules and the value had to be re-determined under Rule 9 of the said Rules. The Department was also of the opinion that the product MFDs imported by the respondent did not conform to the standards prescribed under Rule 13(2)(a), (b) and (c) of the H&OW Rules. The contention of the Department was also that the imported goods was also not as per the standard prescribed by the Indian Quality Standards under the import policy and the compulsory registration order was not obtained from the BIS nor was any exemption certificate produced. Show-cause notice was issued as to why the goods ought not to be seized and penalty imposed. The Original Authority passed an order in Original No.3/2014 dated 4/1/2019. Being aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), which was also dismissed. Hence, respondent preferred an appeal before the Tribunal, which has passed the impugned order by setting aside the absolute confiscation and remanded the matter for determination of redemption fine and penalty. Consequently, by the common impugned order dated 20/12/2019, the appeal filed by the respondent herein was disposed of with the aforesaid relief.5. Being aggrieved, these appeals have been preferred by the Revenue, raising the following substantial questions of law:-"26. WHETHER, the impugned order of CESTAT is right in law in setting aside the confiscation and allowing the option of redemption particularly in view of the admitted fact that the goods imported did not fulfill the condition prescribed in paragraph 2.31 of the Foreign Trade Policy which prescribes the possession of authorization, for import of MFDs which are restricted goods?27. WHETHER, the Tribunal is right in law in allowing the appeal by ignoring the provisions of Electronic and Information Technology Goods (Requirement of Compulsory Registration) Order, 2012 issued under Bureau of India Standards Act, 2016 which mandates the compulsory registration of impugned goods imported before import?28. WHETHER, the CESTAT is right in relying upon the Judgment of Hon'ble Apex Court rendered in Atul Automations Pvt. Ltd. as the said Judgment does not deal with the applicability of provisions of Electronics and Information Technology Goods (Requirement of Compulsory Registration) Order 2012?29. WHETHER, the CESTAT is right in holding that the standards prescribed for each of the machines when intended to function separately is not applicable to exclusive categorization of impugned goods as 'Multifunctional devices'?30. WHETHER, the OM issued from File No.16(10)/2012-IPHW dated 18.04.2012 of the Department of Information Technology is applicable to the impugned goods of import?"6. We have heard learned counsel, Sri Jeevan Neeralgi, appearing for the appellant Commissioner of Customs and Sri Pramod N. Kathavi, learned counsel for respondents in both the appeals and perused the material on record.7. Learned counsel for appellant Department contended that there are twin violations in the instant case: firstly, under the H&OW Rules, there has been noncompliance of Rule 13(2)(a), (b) and (c) of the said Rules, which are in force since the year 2016. Rule 13 prescribes the procedure for import of hazardous and other wastes. Admittedly, the MFDs imported in the instant case are under the category of "other wastes", therefore, Rule 13(2)(a), (b) and (c) had to be complied with. The said sub-rule states that for the import of "other wastes", listed in Part-D of Schedule III, the importer is required to furnish Form No.6 to the Customs Authorities accompanied by the requisite documents in addition to those listed in Schedule VIII, wherever applicable. For use of electrical and electronic assemblies (including printed circuit boards, electronic components and wires) destined for direct reuse and not for recycling or final disposal, listed at Sl.No.4 (j) of Schedule VIII, there is no specific requirement of documents to be produced under the Rules. That in the instant cases, the documents that had to be provided by the respondents are as per clauses (a), (b) and (c). But in the instant cases, respondent importers had not appended Form Nos.6 and 7. Therefore, there was non compliance of the said Rule. In this regard, learned counsel for appellant Department, drew our attention to Schedule VIII at Sl.No.4(j), which is pertinent to the product namely, MFDs.8. He next contended that under Bureau of Indian Standards Act, 1986 ("BIS Act, 1986", for short), in exercise of the powers under Section 10(1)(p) of the said Act and pursuant to Clause (fa) of Rule 13 of the Bureau of Indian Standards Rules, 1987, the Central Government, has issued Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order, 2012. That Clause (3) of the said Order prohibits manufacture, storage, sale, distribution etc., of goods, which do not conform to the specified standard and do not bear the words "Self declaration - Conforming to IS", on such goods, after obtaining registration from the Bureau. That the said clause would apply also to import of goods and to the goods in question. In that regard, he drew our attention to Schedule appended to the order to Item Nos.7 and 8, which deal with printers, plotters and scanners. In that regard, he also drew our attention to Notification dated 07/11/2014 wherein, the schedule has been amended and as per Sl.No.26, copying machines/duplicators have also been added and in respect of these goods, there is necessity of compulsory registration prior to the import of the said goods. But in the instant cases, no such registration has been made by the respondents. Therefore, there is gross and substantial non-compliance of the provisions of the Rules, the aforesaid Act, as well as under H&OW Rules. Such being the position, the Original Authority as well as the Appellate Authority rightly held against the respondents herein, but the Tribunal has been indulgent and has permitted the seized goods to be released subject to determination of the redemption fine and penalty and thereafter, granted relief to the respondents. Learned counsel for the Department submitted that substantial questions of law would have to be answered in favour of the appellant and hence, the appeals may be admitted and the questions may be answered.9. Per contra, learned counsel for respondents in both the appeals at the outset, drew our attention to the Export & Import Foreign Trade Policy ("Foreign Trade Policy", for short) with effect from 01/04/2015 and submitted that under the heading "Import Policy" for Second Hand Goods, the relevant paragraph being 2.31, which deals with Second Hand Goods, has categorized the Second Hand Goods as "Photocopier machines/Digital multifunction Print and Copying Machines", which would squarely refer to MFDs, which are the goods in question. He next referred to Foreign Trade (Development & Regulation) Act, 1992 ["Foreign Trade Act, 1992", for the sake of brevity], under which, the aforesaid Foreign Trade Policy has been formulated and submitted that under Section 11(8) of the Foreign Trade Act, when there is a contravention of the provisions of the Foreign Trade Act, Rules or Orders made thereunder or the Foreign Trade Policy, the imported goods are liable for confiscation by the Adjudicating Authority, in such manner and subject to such conditions, as may be prescribed by the person concerned of the redemption charges, equivalent to the market value of the goods or conveyance, as the case may be. That under Section 3(3) of the Foreign Trade Act, 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 under Section 11 of the Act and all the relevant provisions of the Act shall have effect accordingly. That under Section 18(8) of the Act, it is stated that the Foreign Trade Act, 1992 is in addition to, and not in derogation of the provisions of any other law for the time being in force. Section 125 of the Act is applicable to the said section, which deals with option to pay fine. That in the instant cases, the Tribunal, by exercising jurisdiction under Section 125 of the Act, has set aside the order of the Original Authority, as well as the Appellate Authority and has remanded the matter to the Original Authority for the purpose of release of the goods or determination of the redemption fine and penalty.10. Learned counsel for respondents also contended that the goods have shelf life of five to seven years and two and a half years have been spent in seeking release of the goods. That the Tribunal has also appreciated this aspect of the matter and has ordered for release of the seized goods, subject to determination of the redemption fine and penalty. He submitted that there is no infirmity in the impugned order and that substantial questions of law do not arise in the instant case.11. In this regard, our attention was drawn to the judgments of the Hon'ble Supreme Court in the case of Commissioner of Customs vs. Atul Automations Pvt. Ltd. [(Civil Appeal No.1057 of 2019 & Connected cases arising out of SLP No.12471 of 2018 disposed of on 24/01/2019] [Atul Automations] stating, the review petition filed against the order has been dismissed. Learned counsel for respondents submitted that Paragraph Nos.8 and 9 of the said judgment will squarely apply to the instant cases.12. By way of reply, learned counsel for Department sought to distinguish the judgment in Atul Automations by placing reliance on the decision of the High Court of Madras dated 24/09/2019 in Writ Appeal No.1215/2019 and contended that in the said judgment, the Division Bench on setting aside an order of the learned Single Judge of that Court which had permitted release of the seized goods on remand of the redemption fine and penalty, submitted that in the said case, learned Single Judge therein had permitted provisional release of the seized goods, subject to executing a bond for 90% of the enhanced value of the goods. In the said cases also, MFDs are identical to the goods in the aforesaid case and therefore, the judgment of the Hon'ble Supreme Court may not apply in the instant case.13. We have considered the arguments of the respective counsel in light of the material on record and also, in light of the judgment of the Hon'ble Supreme Court in Atul Automations as well as the applicable law.14. At the outset, it would be useful to refer to the judgment of the Hon'ble Supreme Court in Atul Automations. In that case, respondents therein had imported certain consignments of MFDs, which were stated to be in violation of the Foreign Trade Policy framed under the Foreign Trade Act, 1952 and Rule 15(1)(2) of the H&OW Rules. Redemption fine was imposed under Section 125 of the Act and the consignment was released for reexport only. Penalty was also imposed under Section 112(a) along with penalty under Section 114AA of the Act, as also penalty was imposed on the Directors of the said company. In appeal before the Tribunal, it directed release of the consignment under Section 125 of the Act, as the respondents therein were held to have substantially complied with the requirements of Rule 13 of the H&OW Rules read with Schedule VIII Entry 4(j) except for the country of origin certificate.15. In appeal preferred by the Revenue, the High Court had held that the MFDs were categorized as "other wastes" under Rule 3(1)(23) of the H&OW Rules and it was held that the MFDs were not prohibited, but restricted items for import under the Foreign Trade Policy. That High Court upheld the order of release of goods, subject to executing a simple bond without sureties for 90% of the enhanced value. That liberty was reserved to the Director General of Foreign Trade (DGFT), to take further action in the matter. The Revenue carried the matter before the Hon'ble Supreme Court by contending that import of MFDs without authorization permit was in violation of the Foreign Trade Policy on account of the fact MFDs being categorized as "other wastes". Though, re-export was ordered, Section 125 of the Act could not have been invoked on the facts of that case, to hold that fine in lieu of confiscation would suffice for the purpose of redemption permitting import. That even if the MFDs were not restricted or prohibited item, absence of the necessary authorization under the Foreign Trade Policy would give the character of a prohibited item and merely because earlier consignments were subjected to release, the same could not have been followed on another occasion also. The said contentions were rebutted by learned senior counsel appearing for the respondents therein, who contended that the consignment was not a prohibited, but restricted item, that discretion under Section 125 of the Act was vested with the authority to levy fine in lieu of confiscation and that discretionary power had to be read with Foreign Trade Policy framed under the Foreign Trade Act. Also, there had been substantial compliance with the requirements of Rule 13 of the H&OW Rules read with Schedule VIII Entry 4(j) and hence, the judgment of the High Court would not be enforced. After considering the said contentions, the Hon'ble Supreme Court at Paragraph Nos.8 to 14 opined as under:-"8. Clause 2.01 of the Foreign Trade Policy provides for prohibition and restriction of imports and exports. The export or import of restricted goods can be made under Clause 2.08 only in accordance with an authorisation/permission to be obtained under Clause 2.11. Photocopier machines/Digital multifunction Print and Copying Machines are restricted items importable against authorisation under Clause 2.31. Indisputably, the respondents did not possess the necessary authorisation for their import. The customs authorities therefore prima facie cannot be said to be unjustified in detaining the consignment. Merely because earlier on more than one occasion, similar consignments of the respondent or others may have been cleared by the customs authorities at the Calcutta, Chennai or Cochin ports on payment of redemption fine cannot be a justification simpliciter to demand parity of treatment for the present consignment also. The defence that the DGFT had declined to issue such authorisation does not appeal to the Court.9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorisation upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We therefore find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine under Section 112(a) of the Customs Act,1962.10. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as "other wastes" under Rule 3(1)(23) of the Waste Management Rules, which reads as follows:-"Other wastes means wastes specified in Part Band Part D of Schedule III for import or export and includes all such waste generated indigenously within the country."11. Rule 13(2) provides the procedure for import of other wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions used Multifunction Print and Copying Machines (MFDs). Entry 4(j) lists out five documents required for import of used MFDs. The respondents have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be not applicable to the subject goods.12. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of "other wastes" shall be deemed illegal if it is without permission from the Central Government under the Rules and is required to be re-exported. Significantly the Customs Act does not provide for re-export. The Central Government under the Foreign Trade Policy has not prohibited but restricted the import subject to authorisation. The High Court therefore rightly held that the MFDs having a utility period, the Extended Producer Responsibility would arise only after the utility period was over. In any event, the E-waste Rules 2016 certificate had since been issued to the respondents by the Central Pollution Control Board before the goods have been cleared.13. We therefore find no reason to interfere with the impugned orders. In the statutory scheme of the Foreign Trade Act as discussed, we further find no error in the penultimate direction to the respondents for deposit of bond without sureties for 90% of the enhanced valuation of the goods leaving it to the DGFT to decide whether confiscation needs to be ordered or release be granted on redemption at the market value, in which event the respondents shall be entitled to set off.14. The appeals are dismissed."16. Much reliance has been placed on the aforesaid judgment by learned counsel for respondents, in order to support the order of the Tribunal and to contend that the said judgment would squarely apply in the instant case.17. On perusal of the aforesaid judgment, we find that the Hon'ble Supreme Court has held that MFDs under the Foreign Trade Policy, which provides both prohibition as well as restriction on import and export, was not a prohibited item of import, but only restrictions could be imposed on imports of such goods; That the Hon'ble Supreme Court also noted that the respondents therein did not possess the necessary authorization for their import. But while considering the matter, reference had to be made to the Foreign Trade Act and the Policy made thereunder. That in the event of there being contravention of Foreign Trade Act, Rules, Orders and the Policy framed under the said Act, the manner in which discretion could be exercised for release of the goods on remand of redemption charges becomes pertinent; That having regard to Section 3(3) of the Foreign Trade Act read with Section 18A of the said Act, Section 125 of the Act will become relevant. Since MFDs are not a prohibited item of import but restricted item of import, discretion under Section 125 of the Act could be exercised in the matter of redemption of the restricted goods imported with authority for determination of the redemption fine and penalty. In that case, the Hon'ble Supreme Court held that respondents therein were entitled to redemption of the consignment on payment of the market price at the reassessed value by the Customs Authority with fine under Section 112(a) of the Act.18. The Tribunal in the instant cases has referred to the aforesaid judgment and has granted relief to the respondents by setting aside the order of the authorities below and remanding the matter to the Original Authority, for the purpose of release of the seized goods on determination of the redemption fine and penalty.19. Thus, the question that would arise is, as to whether, the Tribunal exercised its discretion in accordance with law, in light of the violations complained by the Department.20. We have already referred to the contentions of the learned counsel for appellant Department in detail. He drew our attention to two principal violations in the matter of import of the goods in question. The first being no compulsory registration under the Government Order dated 07/09/2012 and having regard to Sl.Nos.7 and 8 of the Schedule thereto, made under the provisions of BIS Act, 1986. In that regard, learned counsel for appellant also drew our attention to Notification of the Ministry of Communications and Information, Technical Department of Information Technology dated 07/11/2014, issued under the BIS Act, with reference to Sl.No.26, which deals with copying machines/duplicators. The original schedule refers to only printers, plotters and scanners. On a combined reading of the same, we find that the goods in question namely, MFDs do not fall in either of these two Schedules i.e., Schedule as per Notification dated 07/11/2014 or in the Schedule as originally appended to the Order dated 07/09/2012. In the circumstances, on the facts of this case, we hold

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that it was unnecessary for the respondents herein to register under the provisions of the Electronics and Information Technology Goods [Requirements for Compulsory Registration] Order, 2012.21. The next submission is with regard to there being non-compliance with Rule 13(2)(a), (b) and (c) of the H&OW Rules, 2016. In that regard, contention of learned counsel for respondents was that Form No.6 of the said Rules do not apply to the goods in question having regard to Schedule VIII Sl.Nol.4(j) inasmuch as Form No.6 is not prescribed for the MFDs.22. While considering the aforesaid contentions, we find that there is force in the contentions of learned counsel for respondents, inasmuch as under the Order for compulsory registration of 2012, MFDs do not find a place and secondly, under the H&OW Rules, submission of Form No.6 under Sl.No.4(j) of the Schedule VIII of H&OW Rules, 2016 does not arise.23. Admittedly, Form No.7 deals with an application form for one time authorization of traders for Part-D of Schedule III, which deals with "other wastes", under H&OW Rules. Admittedly, the MFDs in question are category of "other wastes". Noticing the fact that there was seizure of the goods in question and after the order of the Original Authority, the goods were held liable for confiscation and being aggrieved that respondents herein had challenged the order of the Authorities before the Tribunal. In the instant case, the Tribunal has applied the dictum of the Hon'ble Supreme Court in Atul Automations and has held that there was a substantial compliance in all respects and there was only a procedural aberration and hence, it granted relief in those cases which has been followed by the Tribunal in the instant cases also. While doing so, the Tribunal has also noticed Section 11(8) and (9) of the Foreign Trade Act, 1992 read with Rule 17(2) of the Foreign Trade (Regulation) Rules, 1993 also under Section 3(3) of the Foreign Trade Act. Hence, we find that the dictum of the Hon'ble Supreme Court in Atul Automations would squarely apply in the instant cases also, which has been followed by the Tribunal. Therefore, the substantial questions of law raised by the Department in these cases with regard to the applicability of the judgment of the Apex Court in Atul Automations, would not arise.24. If the said judgment is applicable to the facts of the present case, we find that the other substantial questions of law raised by the Department have been answered by us in the aforesaid terms against the Revenue. Consequently, the appeals are devoid of any merit and are dismissed.The adjudicating authority shall now complete the process of re-adjudication as directed by the Tribunal, within a period of two weeks from the date of receipt of a certified copy of this judgment.
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