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2021 (10) TMI 139 - HC - CustomsSeeking to re-export the Gold Dore Bars, on their furnishing shipping bills - warehoused goods - Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (CPC) - HELD THAT:- The review petition does not make out any case of either of an error apparent on the record of the impugned order – which merely records the consent of learned Counsel for the respondent and disposes of the petition on that basis – or of the order meriting a re-consideration owing to any new material which has come to the notice of the respondent, i.e. the petitioner in the present review petition. Nonetheless, given the fact that the matter involves public revenue, we have deigned to hear the review petitioner, invoking, for the said purpose, the “any other sufficient reason” clause in Order XLVII Rule 1 CPC - there are no ground, whatsoever, to review the order or to accede to the submissions advanced by the review petitioner - No Bill of Entry having been filed in respect of the Gold Dore Bars in the present case, and as they still remained within Customs bond, the factum of import of the bars is, as yet, incomplete. It cannot be said that the import of the Gold Dore Bars into India is completed at this point of time. They cannot, therefore, be said to be in the nature of “imported” goods, for the purposes of enforcing the actual user condition contained in Notification 50/2017-Cus. Compliance with the actual user condition - HELD THAT:- The question of compliance with the actual user condition would arise only if the goods were released for home consumption, as it was obviously impossible for the importer to comply with the actual user condition when the goods were still in Customs bond. Admittedly, the Bill of Entry, in respect of one remaining consignment, is yet to be filed. The consignment is yet, therefore, to be released for home consignment. There can be no question, therefore, of the importer having to comply with any actual user condition at this point of time. The right of the importer to re-export the imported goods, even after clearance and removal to its factory premises, for bona fide grounds, stands acknowledged by the Supreme Court. One such permissible consideration is the fact that the use and sale of the goods in India, has become financially unremunerative. Every businessman works, axiomatically, for profit and that, if the tax authorities impose unrealistic restrictions, unsupported by statutory prescription or proscription, in the way of legitimate trade, it would, in the ultimate eventuate, discourage international trade and commerce, and would, therefore, be detrimental to the national economic interest. The petitioner sought a clarification from the DGFT. We have reproduced the query raised by the petitioner specifically to indicate that, in raising the query, the petitioner was candid regarding the real factual position. The petitioner disclosed the fact that the import was made against a license which contained an actual user condition and that the goods still remained in Customs bonded area. The nature of the objections raised by Customs authorities were also disclosed to the DGFT. Despite this, the DGFT clearly clarified that export of gold not being prohibited, the petitioner was entitled to re-export of the Gold Dore Bars - No justifiable reason, for the Customs authorities to contend otherwise, commends itself. We do not feel that, in acceding to the request of the petitioner to re-export the Gold Dore Bars, the learned Standing Counsel, on 4th September, 2019 committed any error apparent from the record - review petition dismissed.
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