New Conditions for claiming exemption can’t be introduced via Circular

[CA Bimal Jain]

The CESTAT, Kolkata in M/S THE BANK OF NOVA SCOTIA VERSUS COMMISSIONER OF CUSTOMS (ADMN. & AIRPORT) , KOLKATA AND COMMISSIONER OF CUSTOMS (ADMN. & AIRPORT) , KOLKATA VERSUS M/S THE BANK OF NOVA SCOTIA - 2023 (10) TMI 825 - CESTAT KOLKATA held that a new condition, which is not inherent to the exemption notification, cannot be introduced via a Circular.

Facts:

M/s. The Bank of Nova Scotia, (“the Petitioner”), acted as a 'Nominated Agency' under the Foreign Trade Policy. In line with the scheme introduced by the Government of India, known as 'Export against supply by Nominated Agency,' the appellant imported gold, silver, and platinum without paying customs duties. They then supplied these materials to various exporters for the production of jewellery intended for subsequent export.

The Petitioner contested an order issued by the adjudicating authority, which upheld a demand for customs duty amounting to Rs. 13,53,67,882 and Rs. 2,44,32,057, respectively, along with accrued interest. The Petitioner argued that Notification 57/2000 dated May 8, 2000, did not impose a condition requiring the Nominated Agency to obtain certain documents from exporters within a specified timeframe to avail of the exemption.

The Petitioner further pointed out that such a condition was introduced only through Circular 28/2009 dated March 31, 2009 (“Impugned Circular”). Furthermore, they emphasized that established legal principles dictate that new conditions, which are not explicitly outlined in the original Notification, cannot be imposed through a Circular.

The department, (“the Respondent”) contended that the Nominated Agency was obliged to present a Bank Realization Certificate (“BRC”) from exporters within a prescribed timeframe to qualify for the benefits under Notification 57/2000 dated May 8, 2000. If the Nominated Agency failed to submit the BRC as outlined in the Impugned Circular, the customs duties previously waived on the supplied goods could be demanded from the Nominated Agency.

Issue:

Whether the Petitioner is liable to pay customs duty for the import of precious metals when it fails to produce the BRC within the prescribed period, as per the impugned circular, despite the absence of such a condition in the original Notification 57/2000 dated May 8, 2000?

Held:

The CESTAT, Kolkata in M/S THE BANK OF NOVA SCOTIA VERSUS COMMISSIONER OF CUSTOMS (ADMN. & AIRPORT) , KOLKATA AND COMMISSIONER OF CUSTOMS (ADMN. & AIRPORT) , KOLKATA VERSUS M/S THE BANK OF NOVA SCOTIA - 2023 (10) TMI 825 - CESTAT KOLKATA held as under:

• Noted that if the sale proceeds are not collected, it would lead to a request for Customs duty that was initially waived for the nominated agency. 
• Determined that introducing a new requirement not originally outlined in the Notification, but introduced via the impugned Circular, was not permissible, and the duty demand was in violation of the notification's terms.

Author can be reached at info@a2ztaxcorp.com)