Syndicate Innovations International Limited Vs Office of The Commissioner of Customs Through Joint Secretary & Ors (Delhi High Court)
Delhi High Court held that import of firearms is not prohibited the Arms Act and also there is no restriction that import is permissible only if the parts cannot be manufactured locally. Accordingly, it was directed to release the goods so imported.
Facts-
The petitioner, a manufacturer of arms has approached this Court seeking release of “Frames” and “Slides” which had been imported under Bill of Entry No. 9037350 dated 09 June 2022 and Bill of Entry No. 9038081 of the same date, aggrieved by the fact that the said consignments had been withheld by the Customs authorities.
Conclusion-
Held that neither the provisions made in the FTP nor those contained in the ITC (HS) or the HS lend support to the objection raised at the behest of the respondents. They do not appear to prohibit the import of a composite part of a firearm in the sense of the imported article bearing more than one component embedded and fitted as a combined product. The respondents have also failed to establish that under the prevalent import policy, the “operational parts’ which were found fitted to the Frames and Slides required permissions being obtained separately and independently.
The respondents have failed to prove that Frames and Slides as commonly understood or construed in industry or trade circles are not envisaged to be pre-fitted with additional components of a firearm. The respondents have thus failed to establish that the imported items would fall foul of the common parlance or the functionality tests as commonly deployed in such situations.
It is pertinent to observe that neither the MHA nor the DGFT have asserted that the import of firearms is prohibited. It was also not their case that the Act and the 2016 Rules permit the import of only such arms or parts thereof which cannot be manufactured locally. Although the MHA in its advisory has alluded to Rule 57(4), it has not taken the stand that the Act and the 2016 permit import of only such parts of arms which are not being manufactured locally.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. The petitioner, a manufacturer of arms has approached this Court seeking release of “Frames” and “Slides” which had been imported under Bill of Entry No. 9037350 dated 09 June 2022 and Bill of Entry No. 9038081 of the same date, aggrieved by the fact that the said consignments had been withheld by the Customs authorities. When the writ petition was initially entertained the Court had noted that the petitioner had been duly granted the requisite import permission by the competent authority in the office of the Directorate General of Foreign Trade1. During the course of consideration, it came to the fore that although the petitioner‘s consignment had been duly inspected by the Delhi Police in terms of the statutory obligation placed by Rule 88(5) of the Arms Rules 20162, certain queries came to be raised and clarifications were sought from the DGFT. The DGFT in turn is stated to have approached the Ministry of Home Affairs3 for providing appropriate clarifications. When the matter was thereafter taken up on 26 July 2022, the Court was informed that MHA had apprised the DGFT that the petitioner had breached the terms and conditions of the import license. Those issues stand duly highlighted in the order of the Court dated 26 July 2022, which is extracted hereinbelow:
“1. Pursuant to the last order passed, Ms. Nidhi Raman, learned CGSC appearing for respondent Nos. 2 and 4, submitted that the Directorate General of Foreign Trade [DGFT], had sought appropriate clarifications from the Ministry of Home Affairs which has informed them that while the petitioner had a valid import license for frames of handguns, the imported article was found to be fitted with other “licensable articles” including “hammers”, “slides”, “firing pin” and “extractor”. In view of the aforesaid clarification, Ms. Raman contends that the petitioner is in breach of the import license.
2. The aforesaid submission is countered by the learned counsel appearing for the petitioner who submits that a “hammer” “firing pin” or “extractor” is not classified separately for the purposes of import and as long as the petitioner had obtained a valid import license for import of a “frame”, the stand as taken by the respondent would not sustain.
3. Learned counsel for the Delhi Police has additionally, drawn the attention of the Court to Form-7 which is a license for manufacturing and which in terms of the Explanation appended to that form classifies “firing pins”, “frame”, “extractor” and “hammer/striker” separately and individually. In view of the above, it is their stand that the petitioner has not adhered to the license for the import which had been issued.
4. Bearing in mind the nature of issues which stand raised, let the noticed respondents file their replies to the writ petition within a period of one week from today.
5. List again on 05.08.2022.”
2. After exchange of pleadings, the matter was thereafter extensively heard on 30 August 2022. Since that order captures the essence of the dispute which has arisen, the same is extracted hereinbelow: –
“Having heard learned counsels for parties at some length, the Court notes that the present writ petition gives rise to the following issues. The petitioner had approached this Court aggrieved by the fact that arms and parts of arms which had been imported by him pursuant to permission granted by the respondents were not being released.
The Bills of Entry with which the present writ petition is concerned are as follows: –
I. Bill of Entry no. 9037350 dated 09/06/2022 for 500 Frames.
II. Bill of Entry no. 9038081 dated 09/06/2022 for 500 Slides and 1000 Magazines.
The petitioner had contended that as long as it held the requisite import permissions for import of Slides and Frames, there existed no legal impediment which would have justified the retention of those goods.
In accordance with the procedure prescribed under the Arms Rules, 2016 [“the 2016 Rules”], the Delhi Police appears to have undertaken an inspection of the consignments which form subject matter of the present writ petition and addressed a communication of 21 June 2022 to the Directorate General of Foreign Trade [DGFT]. It referred to the fact that on inspection it found that the Frames which had been imported had the following additional parts already fitted thereto: –
a. Hammer
b. Catch magazine,
c. Safety lock
d. Safety lock support pin,
e. Trigger Action Mechanism Part
f. Trigger
Similarly, in respect of Slides, it pointed out that the said article also had the following parts already fitted in each Slide:-
i. Firing Pin
ii. Spring of firing pin
iii. Lock plate of firing Pin
iv. Extractor
The case of the petitioner is that it holds a valid license FOR manufacture of a complete firearm in terms of Form VII which is held and possessed and that consequently it did not require any separate license or permission to manufacture or import components or parts of a firearm. It was pointed that even under the terms of the Foreign Trade Policy 2015-2020 and the ITC (HS) Classification, these parts and components are not separately classified and would all fall for within the compendious entry of “Parts and accessories of articles of headings 93.01 to 93.04”. Those entries pertain to military weapons and other firearms as specified therein.
It was additionally submitted that there is no justification for the respondents taking the position that a Slide or a Frame when imported should not be fitted with additional components of a firearm. Learned counsel for the petitioner contends that at least the Arms Act, 1959 [“the Act”] and the Rules frame thereunder do not contemplate or envisage the import of a Frame or a Slide shorn of a component or part of firearm embedded in them.
Reverting then to the communication which was addressed by the Delhi Police, the DGFT appears to have sought the opinion and advice of the Ministry of Home Affairs [MHA]. The MHA has opined that the import permission which had been granted would not cover parts or components of a firearm which were found fitted to the Frame and the Slide. It has additionally referred to the provisions contained in Rule 57(4) of the 2016 Rules. Both Ms. Raman and Mr. Singh, learned CGSCs have sought to justify the position as set out in the counter affidavit as well as the advice proffered by MHA. They would contend that the import permissions stood restricted to a Slide or the Frame alone and that consequently the import permission cannot be viewed as permitting the petitioner to import a Frame or a Slide with additional parts fitted to it.
It was also pointed out to the Court that the provisions contained in the 2016 Rules and more particularly Rule 88(2) thereof require an importer to obtain a requisite license in terms of Form X which stands placed and appended to those Rules. It was contended that no such license was obtained. Mr. Singh would contend that while the powers of the Licensing Authority under the Act may have been duly delegated to the DGFT in terms of the notification of 01 November 2018, that would not absolve the petitioner from the additional requirement of obtaining the requisite license for import under the 2016 Rules. Notwithstanding the above and since the import permission had been duly granted by the DGFT itself, Mr. Singh submits that the respondents shall consider the grant of that license ex-post facto in order to regularize the consignment which has been duly imported by the petitioner.
Mr. Singh has then relied upon the provisions made in Rule 57(4) of the 2016 Rules to contend that the moment parts of arms and ammunition which cannot possibly be manufactured locally are sought to be imported, the importer is duty bound to move the MHA by way of an application which would in turn obtain the opinion of the Department of Defense before granting an authorization for such import. According to Mr. Singh, this procedure too does not appear to have been followed or enforced by the respondents prior to the grant of import permission.
The Court notes that presently the question whether the components of arms which stand embedded to the Frame and Slides are of such a character or quality which cannot be manufactured locally is an issue which is yet to be examined by the respondents. This, the Court notes since the provisions of Rule 57(4) of the 2016 Rules would come into play only if it were found that those parts cannot be manufactured locally. The Court further notes that the Delhi Police while conducting the inspection had only raised a doubt with respect to the validity of the import on the ground that the Frames and Slide had other components of arms fitted to them. The issue of Rule 57(4) had been raised only by the MHA in its advisory to the DGFT. The Court also takes note of the submission of learned counsel for the petitioner who contended that while the aforesaid objections are being raised insofar as the consignment imported by the petitioner is concerned, various other importers have been permitted to import parts and components of firearms without being required to either obtain an import license as envisaged under Rule 88(2) or any authorization by the MHA as contemplated under Rule 57(4) of the 2016 Rules.
The additional grievance which is raised is that apart from the consignment which forms subject matter of the present writ petition, thirteen other consignments of the petitioner have also been detained as a consequence of the controversy which has arisen here.
The Court also takes note of the contention of learned counsel for the petitioner who submits that the expression ―manufacturing” as defined in Rule 2(31) would clearly indicate that it is permissible for a person to manufacture or produce either a complete firearm or a component thereof. Referring then to the provisions contained in Rules 2(29) and 2(37) of the 2016 Rules as well as the Explanation added to the statutory forms, it was submitted that the amendments to those forms in terms of which various of components of firearms have come to be inserted and added, is merely to meet the contingency where a person may choose to manufacture or import only a particular component or a part of a firearm rather than the complete firearm. Viewed in that backdrop, learned counsel for the petitioner would submit that the perceived requirement of a separate license or import permission being obtained for those components also cannot be countenanced.
Bearing in the mind the aforesaid facts, the Court in the interim passes the following directions.
In light of the suggestions mooted by Mr. Singh, learned CGSC, let the competent authorities in the MHA as well as the DGFT jointly consider the issues which stand flagged in this order and place their stand before the Court within a period of two weeks from today.
The Court further requests the competent authorities in the DGFT, Customs, the Delhi Police as well as the MHA to attend to the grievance of the petitioner with respect to the thirteen other consignments which are stated to have been detained. For the purposes of enabling the respondents to undertake the aforesaid exercise, the petitioner shall provide the details of the thirteen other consignments which are stated to have been detained forthwith.
List again on 15.09.2022.
3. As would be evident from the issues which stood identified in that order, the principal objection which is taken is that the Frames and Slides which have been imported by the petitioner are fitted and integrated with various independent components of a firearm such as trigger, trigger guard, hammer, threaded interfaces etc.. In view of the above and since according to the respondents, the import license stood restricted to a Slide and Frame only, a separate import permission should have been obtained for the additional operational components found fitted thereto. According to them, the aforesaid clearly amounts to a violation of the import permission which was granted to the petitioner.
4. The respondents essentially hold that the parts of a firearm which stand integrated and fitted upon the Slides and Frames which have been imported by the petitioner are classified and envisaged as separate and independent components. The objection principally is that in the absence of separate permissions having been obtained for the import of those components, the consignment is not liable to be released. In the course of consideration of the present writ petition, the respondents had also adverted to the provisions contained in Rule 57(4) of the 2016 Rules and assert that it was incumbent upon the petitioner to have obtained the permission and approval of the MHA before effecting import. In view of the admitted failure of the petitioner to have obtained that permission, the respondents would contend that the consignment is not liable to be released.
5. For the completeness of the record, it may also be noted that initially when the matter was heard, the respondents had also alluded to the failure of the petitioner to have obtained an Import License as envisaged under Rule 88(2) under the 2016 Rules. It was their submission that the requirement of that license being obtained is in addition to and notwithstanding the permission to import as accorded by DGFT to the petitioner. However, the respondents in the course of their submissions fairly conceded that since the same constituted an inadvertent lapse and a procedural lapse on their part, the petitioner may be called to apply for that license and an ex-post facto grant would be duly considered. That license has since been granted to the petitioner.
6. The question which therefore arises is whether the stand taken by the respondents that since the Frame and the Slide had various identifiable components of a firearm embedded to it, the terms of the import permission stood violated is sustainable in law. The second issue which arises for consideration is whether the petitioner was obliged to have obtained the prior permission of the MHA as contemplated under Rule 57(4). For the purposes of considering the aforesaid questions, it would be necessary to note the following salient facts.
7. The petitioner was granted a manufacturing license for firearms and ammunition by MHA on 12 March 2018. That license authorised the petitioner to manufacture shot guns, hand guns, bolt action rifles including double barrel rifle as well as shotgun cartridges and center fire cartridges. It is also stated to have been granted a manufacturing license for air weapons on 3 April 2018. Section 10 of the Arms Act 19594 places a prohibition on the import and export of arms or parts thereof except in accordance with a license which may be issued in that respect by the competent authority. Undisputedly, the power to issue a license for import stood conferred on the MHA. By a Notification of 22 May 2018, the MHA delegated its powers to the Secretary in the Government of India, Department of Commerce, Ministry of Commerce and Industries. The aforesaid Notification reads thus: –
“MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 22nd May, 2018
S.O. 2049(E).- In exercise of the powers conferred by sub-section (1) of section 43 of the Arms Act, 1959 (54 of 1959), the Central Government hereby directs that the powers and functions exercisable and performed by it under section 10 of the Act and Chapter VI of the Arms Rules, 2016, shall also be exercised and performed by the Secretary to the Government of India in the Department of Commerce, Ministry of Commerce and Industry, subject to the following conditions, namely:-
that the Secretary, Department of Commerce, Ministry of Commerce and Industry shall,
(i) be subject to the supervision and control of the Central Government in the Ministry of Home Affairs;
(ii) observe the policies and instructions laid down by the Central Government in the Ministry of Home Affairs and shall not enunciate any new policy or issue instructions in relation thereto without the prior consent of the Central Government in the Ministry of Home Affairs;
(iii) issue the license under section 10 of the Act after obtaining security clearance of the applicant by the Centre Government in the Ministry of Home Affairs;
(2) The Central Government may revoke such delegation of powers and functions or may itself exercise or perform the powers or functions under the said section, if in its opinion such a course of action is necessary in the public interest.
[F.No. V-11026/12/2018-Arms]
MUKESH MITTAL, Jt Secy.”
8. The said Notification was followed by another Notification which came to be issued on 01 November 2018 and which reads as follows:-
“MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 1st November, 2018
SO. 5607(E)-In exercise of the powers conferred by sub-section (1) of section 43 of the Arms Act, 1959 (54 of 1959), and in supersession of the notification of the Government of India, Extraordinary, Part-II, Section 3, Sub section (ii) vide S.O. 2049(E), dated the 22nd May, 2018 the Central Government hereby directs that, the powers and functions which are exercised and performed by it under section 10 of the said Act, shall also be exercised and performed by the following officers, namely:-
a) the Secretary to the Government of India in the Department of Commerce, Ministry of Commerce and Industry or an officer authorised by him in this behalf for import of Arms and Ammunition as specified in Schedule I of Arms Rules, 2016;
b) the Secretary to the Government of India in Department of Defence Production, Ministry of Defence or an officer authorised by him in this behalf for export of Arms and Ammunition as specified in Schedule I of the Arms Rules, 2016.
2. The powers and functions under this notification shall be exercised and performed by the said officers subject to following conditions, namely:-
(i) The Secretary to the Government of India in the Department of Commerce, Ministry of Commerce and Industry, and the Secretary to the Government of India in Department of Defence Production, Ministry of Defence shall observe the policies and instructions laid down by the Central Government in the Ministry of Home Affairs and shall not enunciate any new policy or issue instructions in relation thereto without the prior consent of the Central Government in the Ministry of Home Affairs; and
(ii) The Central Government may revoke such delegation of powers and functions or may itself exercise or perform the powers or functions under the said section, if in its opinion such a course of action is necessary in the public interest.
[F.No.V-11026/164/2018-Arms]
S.C.L. DAS, Jt. Secy.”
9. A reading of the aforesaid Notifications would indicate that while the MHA retained its licensing powers insofar as the manufacture of arms and ammunition was concerned, the power to issue licenses for import of arms and ammunition came to be transferred and delegated to the Secretary, Department of Commerce, Ministry of Commerce and Industries of the Union Government. On 23 October 2020 the petitioner came to be granted a license for import by the DGFT. Subsequently, and on 5 May 2021, 30 March 2022 and 24 June 2022, the petitioner was granted authorisations by the DGFT for the purposes of availing benefits under the Export Promotion Capital Goods Scheme5. The petitioner asserts that it entered into agreements with Kiehberg GmbH, Germany for obtaining technical consultancy services and an agreement for transfer of technology. It also asserts having invested Rs. 63.464 million up to 27 December 2021 in plant and machinery. It is stated to have made further investments of Rs.62.12 million in relation to technical services and technology transfers as well as investments towards import of equipment machinery and software.
10. Pursuant to the license granted by the DGFT under the EPCG Scheme, the petitioner on 06 June 2022 placed orders for the import of Frames and Slides from a supplier in Turkey. It thereafter imported 500 Frames of hand guns and 500 Slides in terms of the Bills of Entry, details whereof have been set out hereinabove. Upon the consignment arriving in the country, the petitioner is stated to have communicated a request to the Delhi Police to inspect the consignment on 13 June 2022. The consignment is stated to have been inspected by the Delhi Police on 15 June 2022 which thereafter and by a communication of 21 June 2022 sought clarification from the DGFT. That clarification was sought upon the third respondent finding that the 500 pieces of Frames were also found to be fitted with the following components: –
a. Hammer
b. Catch magazine,
c. Safety lock
d. Safety lock support pin,
e. Trigger Action Mechanism Part
f. Trigger
Insofar as Slides were concerned, a similar query was raised with the third respondent notifying DGFT that those were found to be fitted with the following components:
i. Firing Pin
ii. Spring of firing pin
iii. Lock plate of firing Pin
iv. Extractor
11. The third respondent thereafter framed the following query for the consideration of the DGFT-
“Armourer/licensing Unit observed that the item captioned parts of handgun-frame already installed with the operational parts mentioned at Sl. No. 1 (a to f) and the item captioned parts of handgun-slides are already installed with operational parts mentioned at Sl. No. 2 (i to iv). Since the import license indicates import item description only Parts of Handgun-Frame & Parts of Handgun-Slides but the actual item is fitted with the other operational mechanism/parts. It is, therefore, requested that it may please be clarified whether the licensee is entitled to import “frame & slide” with pre-installed operational parts as mentioned at Sl. No. 1 (a to f) and Sl. No. 2 (i to iv).”
12. The query essentially was whether the license to import Frames and Slides would also permit the petitioner to import pre-installed operational parts as noticed hereinabove. The petitioner is thereafter stated to have placed for the consideration of the respondents, a communication received from the Turkish exporter who confirmed that the Frames supplied integrated necessary parts like trigger, trigger guard, hammer, threaded interfaces etc. Since the consignment was not being released, the petitioner on 30 June 2022 instituted the present writ petition. On 4 July 2022, the third respondent again approached the DGFT for appropriate clarifications. DGFT by its letter of 15 July 2022 informed the third respondent that Frames and Slides do not stand specifically defined either under the Foreign Trade (Development and Regulation) Act, 19926 or the Foreign Trade Policy, 2015-20207. They are stated to have proceeded to seek appropriate clarifications from the MHA on 21 July 2022. The MHA in terms of its communication dated 03 August 2022 issued an advisory, and since the same would have a material bearing on the case, it is extracted hereinbelow: –
No. V 11024/09/2022-Arms
Government of India
Ministry of Home Affairs
(IS-I Division/Arms Section)
MDCN Stadium, New Delhi
Dated: August, 2022
OFFICE MEMORANDUM
Sub: WP(C) No. 10143/2022 in the matter of M/s Syndicate Innovations International Ltd. Vs the Office of the Commissioner of Customs & Ors. filed before the Hon’ble High Court of Delhi-Comments/inputs reg.
The undersigned is directed to refer DGFT O.M. F No. 01/53/8/Court Case/S-2/AM-23/IC/P-32529 dated 29.07.2022 on the subject cited and to state that, Section 10 of the Arms Act, 1959 read with Rules 87, 88 and 89 of the Arms Rules, 2016 are related to provisions for the import of arms and ammunition. The powers of licensing authority under the Arms Act, 1959 are delegated as per the provisions of Section 43 of the Arms Act, 1959 upon the Secretary to the Government of India, Department of Commerce, Ministry of Commerce and Industry or an officer authorised by him in this behalf for the issuance of import licence for the arms and ammunitions as specified in the Arms Rules, 2016, and accordingly, DGF&T issues import authorisation in this behalf.
2. As per rule 2(37) of the Arms Rules, 2016, the term “parts and components” has been defined as
“parts and components” mean any element or replacement element specifically designed for a firearm and essential to its operation and includes barrel, frame or receiver, slide or cylinder, bolt or breech block, and any device designed or adapted to diminish the sound caused by firing;‖
3. As evident, the above is an inclusive definition, and each part and component of a firearm is a separate part or component unless so specified under the Arms Act, 1959 and the Arms Rules, 2016. The issue in contest is relating to the request/application of import filed by M/s Syndicate Innovations International Ltd. for the following items:
(a) Parts of Handguns-Frame
(b) Parts of Handguns-Slide, etc.
4. From the description of the items above, it is amply clear, by plain reading, that the parts of handgun which are intend to be imported are slides and frames of the handguns. It cannot be interpreted, in its remotest application that the slides will be fitted with other licensable parts, and the same thing applies for the frames. Because, hammer, extractor, slide and frame are stand alone separate parts and components of a handgun, and are licensable for the purpose of manufacturing as well as import under the Arms Rules, 2016.
5. The import authorisation issued by DGF&T as per the documents provided is limited to the import of frames, slides, etc. but does not include hammer, extractor and firing pin. Hence, the said authorisation cannot be interpreted to include the other parts and components which are found by the inspecting authority i.e. Licensing Authority Delhi Police, fitted with the slides and frames imported by the firm. Under the Arms Rules, 2016, hammer, firing pin and extractor are stand alone parts of the handgun, and are licensable for the purpose of manufacturing as well as import.
6. In addition to above the import of arms and ammunition is further subject to the provisions of the rule 57(4) of the Arms Rules, 2016, quote-“the Ministry of Home Affairs may, on an application containing full technical details allow import of such parts of arms and ammunition which are not possible to be manufactured locally, after obtaining the opinion of the Department of Defence Production by grant of an authorisation for such import in accordance with the procedure for import under these rules”-unquote.
7. In view of above, it is amply clear that M/s Syndicate Innovations International Ltd. was allowed to import the parts and components as mentioned in para 2 above, whereas, they have imported:
(a) Hammer
(b) Firing Pin
(c) Extractor
in addition to parts and components, they were authorised by the licensing authority, thereby the company has violated the provisions of the Arms Act, 1959 and the Arms Rules, 2016 read with the Foreign Trade (Development & Regulation) Act, 1992.
8. This issues with the approval of the competent authority.
Sd/-
3.8.2022
(Sujeet Kumar)
Second-in-Command (Arms)
Tel: 011-23075115
To
DG, DGFT, M/o Commerce & Industry, Udyog Bhawan, New Delhi‖
13. As a consequence of the advisory issued by the MHA, the respondents refused to accede to the request of the petitioner for release of the import consignment. As was noticed by the Court in its order of 30 August 2022, the respondents had also raised the issue of the petitioner having not obtained the requisite license as contemplated under Rule 88(2). It had also noticed the stand of the MHA with Mr. Singh, learned CGSC, submitting that although the DGFT appeared to have granted permission for import without bearing in mind the aforesaid statutory requirement, it would consider the grant of that license ex-post facto in order to regularise the import. By the time this writ petition was taken up for final hearing, the Court was informed that the aforesaid license had been duly granted in favour of the petitioner.
14. Post 30 August 2022 and when the matter was again taken up for consideration, the respondents contended that notwithstanding the grant of the import license in Form X as provisioned for under Rule 88(2), the petitioner would not stand absolved of its obligation to obtain the requisite permissions from MHA in terms of the provisions contained in Rule 57(4). It was on the applicability of the aforesaid provision that elaborate submissions were addressed by the respondents thereafter. However, before proceeding down this line, it would be appropriate to briefly notice the submissions which were addressed by respective parties.
15. The petitioner contends that once DGFT had accorded the requisite permission to import in accordance with the powers so conferred on it in terms of the notification of 01 November 2018, there was no additional requirement for the petitioner to have obtained a separate import license. It was submitted that the power of the MHA to regulate the import and export of arms which stands enshrined in Section 10 of the Act stood duly delegated and conferred upon the DGFT. In view of the above, it was submitted that the petitioner could not be faulted for the respondents having failed to consider the grant of a license additionally in Form X. On a more fundamental plane, it was vehemently argued that there is no justification for the respondents taking the view that the Slides and Frames as imported did not conform to the import permission that was granted. It was submitted that Slides and Frames would clearly fall within the ambit of “Parts and accessories of articles of Heading 9301 to 9304” as set forth in the Indian Trade Clarification based on Harmonized System Classification8. Learned counsel would submit that once the respondents had accorded the permission for import of Slides and Frames, there existed no legal justification for the validity of those imports being questioned merely because those Slides and Frames came fitted with certain additional components of a firearm. It was urged on behalf of the petitioners that the Explanations which stand appended to Forms VII and X-A and which chronicle the various components of a firearm, is only to take care of the contingency where a manufacturer may be engaged either in the production of a complete firearm or merely a particular component thereof. Similarly, according to the petitioners the Explanation which stands set out in Form X-A also must necessarily be understood as covering the eventuality of an entity exporting any of the components or parts of a firearm that are mentioned therein.
16. The attention of the Court was also drawn to the definition of “main fire arm component” as set out in Rule 2(29) as well as “parts and components” as contained in Rule 2(37) of the 2016 Rules. It was pointed out that Frames and Slides stand duly mentioned in both Rules 2(29) and 2(37). The contention essentially was that as long as a Slide or Frame fell within the scope of the aforesaid definitions, the mere fact that it constituted an amalgam of more than one component of a firearm could not be said to be a violation of the import permission that was granted. The petitioners then submitted that Rule 57(4) can clearly have no application since it is not the case of the respondents that the imported articles could not be possibly manufactured locally. It was urged that sub-rule (4) of Rule 57 would only apply and oblige an importer to approach the MHA only in case the import of parts of arms and ammunitions ―are not possible to be manufactured locally“. In any case, learned Senior Counsel appearing for the petitioner would contend that once the import had been duly sanctioned by the DGFT, the refusal to release the consignment based upon a subsequent advisory which may have been issued by the MHA is wholly arbitrary and illegal.
17. Learned counsel appearing for the Delhi Police submitted that during the course of inspection it was noticed that Frames and Slides had been imported into the country fitted with various additional and identifiable components of firearms. According to learned counsel, it was in the aforesaid backdrop that further clarification was sought from the DGFT. Learned counsel further apprised the Court that Delhi Police had, in any case, fulfilled the obligations placed upon it in terms of Rule 88(5) of the 2016 Rules and thus it cannot be held liable for any delay in the release of the consignment that may have subsequently occurred. Learned counsel further argued that, in terms of Rule 88(5), the inspecting authority is statutorily obliged to examine whether the articles imported are found to be ―corresponding with the import license.” According to the said respondent, the clarification which was sought from the DGFT, was justified in law and in discharge of the duty cast upon the inspecting authority.
18. Raman, learned CGSC appearing for the DGFT, has submitted that both, the Act as well as the 2016 Rules provision for parts and components of firearms distinctively. It was her submission that the definition of a ―main fire arm component” as contained in Rule 2(29) clearly indicates that a Slide or Frame must mean just that and not any other part or component of a firearm fitted to it. Ms. Raman would submit that the very same purpose is served by the Explanations which stand appended to Forms VII and X-A and which would clearly indicate that the petitioner was obliged to have fairly disclosed that it was not just Frames and Slides which were being imported but also various other components and parts of a firearm. It was the submission of Ms. Raman that the Delhi Police in its communication of 21 June 2022 had clearly recorded that the Slides and Frames which had been imported had been found to be installed with various additional operational parts of a firearm and thus in probable violation of the import permission which was granted. It was her submission that the pre-installed operational parts which were found fitted onto the Frames and Slides were, as per the advisory of the MHA, constituted a clear violation of the import permission which had been granted and thus the reliefs as prayed for in the writ petition are liable to be refused. Ms. Raman also submitted that the DGFT was justified in approaching the MHA for clarification bearing in mind the provisions made in Para 2(i) of the Notification dated 01 November 2018 and in terms of which the DGFT was obliged and duty bound to comply with instructions that may be issued by the MHA.
19. Mr. Singh, learned CGSC appearing for the MHA had argued that since various components of a firearm are separately and independently recognized, it was impermissible for the petitioner to have imported Frames and Slides with other additional operational parts and components. According to Mr. Singh, the Explanations as appended to Forms VII and X-A clearly warranted the petitioner applying for permission for each component of a firearm which was ultimately imported. Mr. Singh also further vehemently urged that the petitioner before seeking to import parts of arms was clearly obliged by Rule 57(4) to apply to the MHA for grant of requisite permission and in having failed to do so the detention of the goods is clearly justified in law.
20. Having noticed the rival submissions that arise for consideration and before proceeding further, the Court deems it apposite to briefly notice the relevant provisions as made in the FTP as well as the Act and the 2016 Rules.
21. At the very outset, it may be noted that Chapter 9 of the FTP defines an “accessory” or an “attachment” in Para 9.01 to mean a part, sub assembly or assembly that contributes to efficiency or effectiveness of a piece of equipment without changing its basic functions. Under the ITC (HS) 2022, the subject of arms and ammunition, parts and accessories thereof are dealt with in Chapter 93. ITC (HS) Heading 9301 deals with military weapons other than revolvers and pistols. Revolvers and pistols other than those which are set out in ITC (HS) Headings 9303 and 9304 are covered by ITC(HS) Heading 9302. ITC(HS) Heading 9303 covers firearms and similar devices which operate by the firing of an explosive charge and include sporting shot guns, rifles and muzzle loading firearms, pistols and other devices designed to project signal flares, pistols and revolvers for firing blank ammunition and captive bolt humane killers. ITC(HS) Heading 9304 is the residuary entry and deals with other arms such as spring air or gas guns and pistols and truncheons excluding those falling under Heading 9307.
22. Heading 9305 deals with parts and accessories of articles of headings 9301-9304. The petitioner had placed the articles intended to be imported under Heading 9305. It was further classified as falling under the Heading 93051000 and thus being ―Parts and accessories‖ of revolvers or pistols. The import of these articles admittedly falls within the restricted category. The import of such articles was thus to comply with the provisions contained in Section 10 of the Act and the procedure thereof to be regulated by Rule 88 of the 2016 Rules.
23. Form X appended to the 2016 Rules spells out the general conditions on the basis of which import may be sanctioned. The format thereof is extracted herein below : –
FORM X
Composite Import License for Arms and Ammunition
Import…. In Transit…. Import for Re-Export…. Transport for Re Export…..
