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2014 (4) TMI 908 - HC - CustomsJurisdiction & Power of DGFT – Price Fixation Notification – Fixation of Tariff Value of Betel nut - Non-fulfillment of the policy condition of notification - Policy to import betel nut – Issuance of Show cause notice - Section 111(d) of the Customs Act, 1962 - Article 166 of the Constitution – Purpose of the Act - Imposition of penalty - Section 112 - Held That:- Judgment in Dattatreya Moreshwar v State of Bombay[1952 (3) TMI 32 - SUPREME COURT]followed - Clauses (1) and (2) of Article 166 are directory only and non-compliance with them does not result in the order being invalid and that in order to determine whether there is compliance with these provisions all that is necessary to be seen is whether there has been substantial compliance with those requirements - Relying upon S. MIRA COMMODITIES PVT. LTD. Versus UNION OF INDIA [2008 (9) TMI 213 - MADRAS HIGH COURT] - The DGFT functions as a limb of the Central Government and not as a delegatee and mere non-mentioning of the specific source of power does not invalidate the entire executive action. Merely by revising the rate in the garb of the amendment to a circular which has been quashed and set aside by the High Court cannot be done by way of an amendment of the policy u/s 5 of the FTDR Act - Paragraph 2.1 of the Foreign Trade Policy, 2009-2014 clearly provides the import and export, to be free except, where regulated by Foreign Trade Policy or any other law in force - It further provides that the Item wise export and import policy shall be notified by the DGFT as amended from time to time - According to the respondent, Paragraph 2.6 of the policy empowers the DGFT to adopt and enforce any measure under the principles of restrictions through a notification – The aforesaid parameters set forth therein does not satisfy the imposition of conditions by way of revision of rate from ₹ 75/- to 110/- per kg and above - Therefore, the DGFT even as a delegatee is not empowered to put a condition by revising the rate as a condition to import. Impugned notification dated 13-5-2013 issued by DGFT for fixation of tariff value cannot be sustained therefore set aside. - Decided in favor of assessee. Fixation of tariff value by the Customs Department - Notification dated 25-6-2013 - Held that:- The contention of the petitioners that the Board cannot fix the tariff value is unacceptable and runs contrary to the intendment of the legislation. - Except that the impugned notification does not stand on the anvil of wednespury principle and the principle of proportionality, it is not averred in the writ petition, the said notification lacks subjectivity - The power to frame the tariff value is entirely depend upon the satisfaction of the Board and the question of sufficiency of the ground which forms such satisfaction cannot be gone into unless it is demonstrated that it is extraneous to the scope and purpose of the statute - Relied upon Barium Chemicals Ltd. -vs- Company Law Board [1966 (5) TMI 36 - SUPREME COURT OF INDIA] It would be deciphered from the impugned notification that the authorities took note of the trend of the value of such or like goods and, therefore, the presumption lies in favour of upholding the notification - This Court, therefore, does not find that the impugned notification, which is issued in exercise of the power u/s 14(2) can be invalidated on the grounds taken by Assessee - Decided against the assessee. Maintainability of writ petition filing after submitting reply to the Show Cause Notice - Held that:- The petitioners have not only challenged the show cause notice after giving reply but have also challenged the impugned notification dated 13th May, 2013 and 25th June, 2013 which forms the basis of the issuance of the said show cause notice. There is no impediment in maintaining the writ petitions even after filing of the reply. - Following decision in the case of Suttons & Sons Pvt. Ltd; vs Union of India & Ors [1994 (2) TMI 298 - HIGH COURT OF CALCUTTA]; writ petition is maintainable - Decided in favor of assessee.
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