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Showing 21 to 40 of 76 Records
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2020 (10) TMI 921 - MEGHALAYA HIGH COURT
Validity of release order under Section 110A of the Customs Act - Betel Nuts - fulfilment of condition precedent for the release of the subject betel nuts - Circular dated 16-08-2017 - HELD THAT:- In the light of the decision of the Division Bench of Delhi High Court in AGYA IMPORT LIMITED VERSUS COMMISSIONER OF CUSTOMS, NEW CUSTOM HOUSE, NEW DELHI [2018 (10) TMI 573 - DELHI HIGH COURT] where under it is held that Circular dated 16-08- 2017 is directory and not mandatory and also that the conditions for said Circular are merely guidance coupled with the order dated 20-02-2020 issued by the Superintendent (Adjn.) under which the betel nuts were provisionally released on deposit of 25% of the seizure value, I am of the considered view that the impugned order cannot be sustained especially when it is the specific case of the petitioner that the seizure value of the subject betel nuts is ₹ 52.23 lakh and under the impugned order the petitioner was asked to deposit an amount of ₹ 70.51 lakh.
The matter is remanded back to the Commissioner of Customs (Prev.), NER, Shillong to reconsider the provisional release of the subject betel nuts belonging to the petitioner in the light of the decision of Delhi High Court in Agya Import Ltd and the order of the Superintendent (Adjn.) dated 20-02-2020 on which petitioner relied upon.
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2020 (10) TMI 902 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Provisional release of seized goods - Betel Nuts - petitioners argues that as no bonafide ''reasons to believe' existed, the seizure of the goods was wholly arbitrary and illegal - HELD THAT:- The statute that the power of seizure of goods under Section 110 of the Customs Act can be resorted to only when the Officer exercising the said power has ''reasons to believe' that the goods are liable to confiscation - In the present case, admittedly the goods were at Gorakhpur and not seized from any port or any custom area to form a belief that the goods were being imported into India. In the Panchnama, which the counsel for the respondents submits is a seizure memo, the only reasons recorded are that on a prima facie examination, the ''Areca Nuts' loaded in the Truck and as on some of the bags inscriptions in foreign language was written as well as that the ''Areca Nuts' on being taken out from the bags appeared to be of a foreign origin. The ''Areca Nuts' were shown to the local businessman and on the basis of their experience, they said that the ''Areca Nuts' appears to be of foreign origin. Thus, on these three grounds, the action for seizure was initiated.
It is well settled that the ''reasons to believe' must be based upon acceptable materials, which have to be more than a moon shine. The material on record overwhelming suggests that the ''reasons to believe' were based upon the opinion of the local dealers, prima facie examination of the goods by naked eye and inscriptions in foreign language on some bags. We are not inclined to accept the reasons given for forming a belief for exercise of power of seizure are valid in law. The said reasons even fail the test of ''wednesbury principles' as no reasonable person can reach to conclusion of the country of origin of ''Areca Nuts' by mere perusal from naked eye as well as the opinion of the traders, as the Institutes as well as the Ministry have firmly opined that the country of origin cannot be traced by any laboratory method also.
The respondent authorities shall forthwith release the goods i.e. ''Areca Nuts' as well as the vehicle in question in favour of the petitioner nos. 1 and 2 respectively on the petitioners filing a copy of this order before the authority concerned - petition allowed.
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2020 (10) TMI 871 - CESTAT MUMBAI
Application for early hearing - Confiscation - penalty - electronic item - case of appellant is that such item would become obsolete and non-useable if not released early - HELD THAT:- The issue involved in this appeal is not having any relation to the rate of duty of Customs or to the value of goods for the purpose of assessment that would prohibit the Single Member Bench to hear the appeal as contemplated in Section 129C(4)(b) of the Customs Act, 1962. On the other hand, it is concerned with the requirement of production of a certificate from BIS Authority for release of goods - Therefore, having regard to the fact that the goods are live consignment on which earliest possible hearing is to be afforded to the appellant, the early hearing application is allowed.
List the appeal on 13th October 2020 for hearing.
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2020 (10) TMI 830 - BOMBAY HIGH COURT
Validity of Notification dated 29.03.2019 - the notification was amending the import policy in respect of peas (pisum sativum) including yellow peas, green peas, dun peas and kaspa peas having Exim code 0713 1000 - goods were put into restricted category via the said notification - Rajasthan High Court by order dated 20.07.2019 issued notice and stayed the operation and effect of the aforesaid notification and trade notice qua the petitioner.
HELD THAT:- The jurisdiction conferred on the Principal Commissioner of Customs or Commissioner of Customs under sub-section (2) of section 129 D is revisional and not review; it is a suo-motu revisional jurisdiction which is exercised by either of the above two officers for the purpose of satisfying himself as to the legality or propriety of any decision or order of an adjudicating authority subordinate to him - The time limit for passing an order under sub-section (2) of section 129D is three months which is provided in sub-section (3) though the said period can be extended by another thirty days by the Central Board of Indirect Taxes and Customs. Sub-section (4) clarifies that if pursuant to an order passed under sub-section (2), the adjudicating authority or any officer of customs authorized in this behalf by the Principal Commissioner of Customs or Commissioner of Customs makes an application to the Commissioner (Appeals) within the time specified, such application shall be heard by the Commissioner (Appeals) as if it were an appeal made against the decision or order of the adjudicating authority and the provisions relating to appeals shall be applicable to such application.
The suo-motu revisional power under sub-section (2) of section 129 D is within a very narrow compass; to ensure that the subordinate authorities are kept within the bounds of their authority to make them act according to law; according to the procedure established by law; and according to well defined principles of justice; thus conforming to the requirement of legality or propriety - Also, consequent upon exercise of power under sub-section (2) of section 129 D, the application filed before the Commissioner (Appeals) would be treated as if it is an appeal against the decision or order of the adjudicating authority and all provisions regarding appeal shall apply to such an application.
The first ground given to justify as to why the order-in-original is not legal and proper is non-issuance of show cause notice - HELD THAT:- Section 124 of the Customs Act deals with issuance of show cause notice before confiscation of goods etc. It says that no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given a notice in writing containing the grounds for the proposed action, and thereafter giving him an opportunity of making a representation in writing within reasonable time. However, the first proviso is relevant and it says that the show cause notice and the representation may at the request of the person concerned be oral. Therefore, under section 124 of the Customs Act at the request of the owner or person concerned, the show cause notice and the representation in writing may be waived and thus may be oral - In the instant case, petitioner made a request not to issue show cause notice but to give him personal hearing. This was accepted by the adjudicating authority which power admittedly he has under the first proviso to section 124 and he has given reasons for the same i.e., long pendency and perishable nature of the consignments.
Non-addressal of the issue of suspension of import export code of the petitioner - HELD THAT:- The adjudicating authority could not have taken up and examined such order of suspension. Besides, from a perusal of the order of suspension dated 16.12.2019 it is evident that the said order has barred the petitioner from conducting any further import and export meaning thereby that it is prospective and in no way impacted the import made prior to that date which was the subject matter of adjudication in the order-in-original.
The third ground given by the Commissioner which is that the adjudication order ordered redemption of the goods on the basis of the assumption that the goods should be released against redemption fine without considering other issues, such as, suspension of import export code, restrictive nature of import, etc. - HELD THAT:- This ground can be examined together with the fourth and the sixth grounds given by the Commissioner.
As per the fourth ground, the adjudicating authority did not give reasons as to why absolute confiscation or re-export was not considered as an option and as per the sixth ground, enquiry was not conducted for ascertaining the market price and margin of profit for imposition of redemption fine and penalty.
When the goods were not cleared, those were allowed to be warehoused under section 49 of the Customs Act and the goods remained warehoused for about nine months. Considering the long pendency of the consignment besides its perishable nature and the fact that the consignments were rotting in the open yard of the Mumbai Port Trust facing the fury of the monsoons, the adjudication was taken up on priority. Adjudicating authority noted that the imports were made in contravention of the notification dated 29.03.2019 and trade notice dated 16.04.2019. Thus, the goods became prohibited, liable for confiscation - the adjudicating authority calculated the margin of profit @ Re.1 per kg as suggested by the assessing officer and on that basis worked out the redemption fine in terms of the second proviso to sub-section (1) of section 125 - the adjudicating authority had the power to give option to the owner or person concerned to pay fine in lieu of confiscation which power he exercised and the quantum of fine was determined after considering various aspects including the margin of profit suggested by the assessing officer.
The final ground given by the Commissioner is that the adjudicating authority did not discuss why he chose to rely upon the certificate of the accredited laboratory rather than referring the matter to the designated government agency - HELD THAT:- The ground itself indicates that the laboratory from which the related report was obtained and which was considered is a laboratory which is accredited to the customs department. Accredited means giving official authorization or recognition. Therefore, no fault can be found in the adjudicating authority placing reliance on such report. Besides, no technical or any other fault in such report has been pointed out by the Commissioner.
We cannot say that the order-in-original is unlawful or inappropriate or unjust or that the adjudicating authority acted beyond the bounds of his authority. However, since application has been filed which will now be decided by the Commissioner (Appeals) as an appeal, we only limit our examination to the justification or otherwise of not releasing the goods of the petitioner on the strength of the order dated 01.10.2020. - Petitioner has complied with the terms and conditions of the order-in-original and made the necessary payments. Out of charge has been issued. Because of warehousing of the goods under section 49 of the Customs Act, petitioner is required to pay a substantial amount to the customs authority. In the above context and after thorough consideration of all aspects of the matter, we are of the view that non-release or withholding of the imported goods of the petitioner any further would not be just and proper. At least the grounds given in the order dated 01.10.2020, which order itself was passed in a highly improper manner, do not justify that the goods should be withheld or denied release notwithstanding the order-in-original and compliance thereto.
The respondents are directed more particularly respondent Nos.4 to 7 to forthwith release the goods of the petitioner - petition allowed.
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2020 (10) TMI 829 - BOMBAY HIGH COURT
Prohibition on export of all varieties of onions with immediate effect - Validity of N/N. 31/2015-20 dated 14.09.2020 issued by Director General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry, Government of India - basic grievance of the Petitioners are that their bills for export of onions were prior to issuance of notification dated 14th September, 2020 whereby export of onions has been prohibited; yet those are not being permitted to be exported.
HELD THAT:- A conjoint reading of sections 50 and 51 of the Customs Act would prima facie indicate that a great deal of sanctity is attached to a shipping bill and a bill of export, shipping bill in the present case. While presenting a shipping bill the exporter has to disclose all the relevant information pertaining to the export and has to make a declaration as to the truthfulness of the contents of the shipping bill - In exercise of the powers conferred by section 157 (general power to make regulations) read with section 50 of the Customs Act, the Central Board of Indirect Taxes and Customs have made a set of regulations called “the Shipping Bill (Electronic Integrated Declaration and Paperless Processing) Regulations, 2019” (2019 Regulations). ‘Authorized person’ has been defined to mean an exporter or a person authorized by him under regulation 2(b). ‘Electronic integrated declaration’ has been defined under regulation 2(c) to mean particulars relating to the export goods that are entered in the Indian Customs Electronic Data Interchange System. Under regulation 2(d), ‘ICEGATE’ has been defined to mean the customs automated system of Central Board of Indirect Taxes and Customs. ‘Shipping bill’ has been defined under regulation 2(g) to mean an electronic integrated declaration accepted and assigned a unique number by the Indian Customs Electronic Data Interchange System, and includes its electronic records or print outs.
Thus, filing and generation of shipping bill is not an empty formality. It has a definite meaning assigned to it under the 2019 Regulations. It sets in motion the process of exportation of goods. The 2019 Regulations only reinforces the sanctity attached to a shipping bill under section 50 of the Customs Act - we may also usefully refer to internal communication of the Central Board of Indirect Taxes and Customs dated 18.09.2020 whereby clarification has been issued on date of shipment / dispatch in respect of exports having regard to the provisions contained in paragraph 9.12(B) of handbook of procedure. It says that wherever procedural / policy provisions have been modified to the disadvantage of the exporters, the same shall not be applicable to consignments already handed over to the customs for examination and subsequent exports upto public notice / notification date. It has been clarified by the Central Board of Indirect Taxes and Customs that this provision would remain applicable wherever the conditions are met.
In continuation of our order dated 25.09.2020, export of onions in respect of the shipping bills which were presented and generated prior to 22:28:11 hours on 14.09.2020 shall be allowed subject to the clarification given by the Central Board of Indirect Taxes and Customs in its communication dated 18.09.2020 - List this matter in the first week of December, 2020 for fixing a date of hearing.
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2020 (10) TMI 784 - MADRAS HIGH COURT
Benefit of concession/exemption - N/N. 158/95/Cus - goods re-imported for repair/reconditioning of the goods, when again re-exported beyond the prescribed period of one year including the extension of six months permitted in the Notification - HELD THAT:- Since there is no dispute before us from the side of the Assessee that the reimport of the goods which had taken place to repair/recondition the goods in question were re-exported beyond the prescribed period of one year including the period of six months of extended period and therefore, the Assessee had admitted the breach of the condition of exemption from custody duty under the said Notification No.158/95/Cus. Merely because the Assessee could claim the duty drawback later on, and it may give rise to a revenue neutral situation, it cannot be said that the period of one year prescribed in the said Notification is without any meaning. Whether the Assessee/ Importer would actually get such duty drawback or not, is a question which was yet to be determined by the concerned Adjudicating Authority when such a claim of duty drawback was made by the Assessee. Therefore, that issue cannot be prejudged either by the Tribunal or by this Court.
On the admitted breach of the Notification No.158/95/Cus, the Assessee/ Importer definitely became liable to pay the custom duty in question, denying the exemption under the said Notification in view of the admitted delay beyond the period of 12 months, for the re-export of the same goods. The learned CESTAT therefore in our opinion was justified in denying the said exemption to the Assessee and also rejecting the Rectification Application filed by the Assessee. What Tribunal has done is nothing but asking the Assessee to comply with the law.
Duty Drawback - HELD THAT:- The question of claiming duty drawback by the Assessee was yet to arise, when such claim was made in accordance with law. This claim cannot be prejudged and holding it to be revenue neutral situation without that claim being examined would be premature and therefore, the learned Tribunal was justified in denying that relief to the Assessee. So also, we too cannot examine and decide the issue prematurely.
Appeal dismissed.
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2020 (10) TMI 783 - CESTAT KOLKATA
Validity of Search and Seizure - Smuggling - Gold - cross examination of the panch witnesses - Whether the Revenue establish the existence of reasons to believe that the impugned gold was smuggled? - HELD THAT:- It was incumbent upon the Department to prove the smuggled nature of the gold also. The only effort revenue seems to have made is to mention in the show-cause notice that as no valid import documents could be produced by the person carrying the gold, the same are deemed to be smuggled goods. Show cause mentions that ‘it seems settled fact that the seized gold were illegally brought into India from abroad by any route other than the route specified under Clause (c) of Section 7 of Customs Act, 1962. No meaningful inquiry and investigation appear to have undertaken to prove the smuggled nature of the gold; it is also not mentioned at least from which foreign country, the impugned golds have been illegally imported.
Whether the impugned gold is liable to be categorized as gold of foreign origin? - HELD THAT:- There is no whisper in the entire show cause notice about the origin of the gold bars seized from the appellant. It is not mentioned as to where, how and by whom the said gold was smuggled into India. Therefore, the smuggled nature of the impugned gold is far from established. In such circumstances, the department appears to have attempted to cover up the inadequacies in the investigation with not so convincing reasons. No reference was made to experts in the field. Though Chemical examiners report indicated the purity of the Gold, it did not conclude that the impugned gold was of foreign origin - Department has not established that the seized gold is of foreign origin and has also not established that the same was smuggled in to India. As the reasons to believe that the impugned Gold is of foreign origin and is smuggled, benefit of doubt or benefit of any shortcomings in the investigation should accrue to the appellant and not to the Revenue.
Whether the Customs have followed correct procedure vis-à-vis search and seizure of the gold? - HELD THAT:- It is found that no proper search of the appellant was conducted at the Railway station. As per the show cause notice, pieces of gold were found with the appellant at the Railway station as well as the Customs House. The reasons for summoning a person, instead of searching and seizing on the same spot and taking him to the Customs House for detailed search etc. has not been properly explained in the show cause notice and in the order-in-original.
The Revenue did not establish that the impugned gold was of foreign origin and was smuggled. Therefore, the seizure of the impugned gold is not maintainable - Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 782 - CESTAT NEW DELHI
Levy of penalty on Customs Broker - Regulation 20(7) and 22 of CBLR, 2013 - mis-declaration both at the time of import and again at the time of export as regards description, country of origin and value - HELD THAT:- The charge of violation under Regulation 11(n) as regards compliance of KYC norms is not established as admittedly the appellant have received several documents from their client viz. PAN card, KYC details in prescribed format, authorisation, self attested copy of IEC etc. which corroborate the genuineness of their client - M/s AAA Impex Services and their working at their given address. Further, there is no document which raises suspicion. Accordingly, the charge under Regulation 11(n) is not established.
Charge under Regulation 11(e) - HELD THAT:- There is no act of omission or commission which indicates lack of due diligence to ascertain the correctness or any information imparted by the appellant to their client with reference to the work handled by them. Further, there is no case made out of any collusion or abetment. Further, no case of any illegal gains on the part of the appellant CB is made out, indicating their collusion as alleged. Further no case is made out that the appellant CB have knowingly allowed the alleged mis-declaration by their client. It is established principle of law that mere facilitation without knowledge of consequences, would not amount to abetting an offence.
Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 776 - MADRAS HIGH COURT
Refund/rebate claim withheld - no stay order obtained - Circular bearing No.276/186/2015-CX.8A dated 01.06.2015 - HELD THAT:- If no interim order has been obtained by the department within a specified period, refund has to be allowed and of course the same will be subject to the outcome of the appeal. In the case on hand, the appellate authority passed the order dated 18.02.2020. We are now on 01.10.2020. More than seven full months have elapsed in the meanwhile. If the department was aggrieved, the department should have expeditiously filed an appeal and pursued the matter and obtained interim order. The petitioner cannot be made to wait indefinitely. The department cannot take its own sweet time to file the appeal and pursue the same. The department ought to have acted expeditiously in the matter.
The respondents herein are directed to disburse the refund due to the petitioner at the applicable rates of interest. This refund shall be made within a period of four weeks from the date of receipt of a copy of this order - petition allowed.
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2020 (10) TMI 757 - KERALA HIGH COURT
Smuggling - Gold Biscuits - offence punishable under Section 135 (i) (i) of the Customs Act - acquittal of the accused - whether the acquittal order passed by the trial court is correct or not? - HELD THAT:- The trial court considered the oral and documentary evidence in detail and acquitted the accused. This is an appeal against acquittal. The Apex Court observed that the presumption of innocence attached to every accused persons got strengthen on acquittal of an accused by a trial court - This principle was laid down by Hon'ble Supreme Court in SAMPAT BABSO KALE AND ORS. VERSUS THE STATE OF MAHARASHTRA [2019 (4) TMI 1911 - SUPREME COURT] and CHANDRAPPA AND ORS. VERSUS STATE OF KARNATAKA [2007 (2) TMI 704 - SUPREME COURT].
The trial court considered all the oral and documentary evidence in detail and came to a definite conclusion that the accused is not guilty. In such circumstances, this Court cannot interfere with the well considered judgment of the trial court in an appeal against acquittal.
Appeal dismissed.
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2020 (10) TMI 741 - GUJARAT HIGH COURT
Imposition of penalty - designation of appellant on the company - non-executive Chairman of the Company or not - existence of mens rea - reliability of statements recorded - rectification of mistake - HELD THAT:- In view of the dictum of law with regard to the statement recorded under section 108 of the Act coupled with concurrent findings of fact arrived at by the adjudicating authority and the CESTAT, we are not inclined to interfere as no perversity is pointed out in such factual findings arrived at by the both the authorities. For the foregoing reasons and considering section 112(a) of the Customs Act which provides that penalty against person who in relation to any goods does or omits to do any act which act or omission would render such goods liable to confiscation under section 111 or abets the doing or omission of such an act, penalty can be imposed not exceeding the value of the goods or five thousand rupees whichever is greater. Therefore, invoking such provision would require mens rea on part of the appellant which is duly established on record.
Rectification of mistake - HELD THAT:- The CESTAT was justified in rejecting the rectification application as any interference in the impugned order passed by the CESTAT would have resulted in review of its own order which is not permissible under the provisions of the Customs Act.
Appeal dismissed.
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2020 (10) TMI 646 - RAJASTHAN HIGH COURT
Exotic species - Constitutional Validity of Section 108 of the Customs Act, 1962 - vires of Article 14 and 21 of the Constitution of India - issuance of suitable Circular/Instructions to enable the citizens in domestic possession of exotic species to make declaration under the voluntary disclosure scheme without any fear of actions under the customs Act, 1962 - summon of petitioner for seeking any information relating to the acquisition of the exotic species in possession of the petitioner in respect of which the petitioner is contemplating filing of a declaration under the Voluntary Disclosure Scheme - prohibition on officers of the Respondents from taking any action of summoning the petitioner in connection with inquiry or seizure/confiscation of exotic species in domestic possession, under any law.
HELD THAT:- The writ jurisdiction under Article 226 of the Constitution of India can be exercised even to protect the apprehended violation of right or to enforce statutory duty. The advisory introduced by the Central Government is in public interest and for a limited period of six months. We do not find it just and expedient to consider the apprehension raised by the petitioner and deal with the issue raised on their own merits.
At the present juncture, the advisory issued by the Ministry of Environment, Forest & Climate Change sought to bring within its control such "exotic live species" since there was no requirement to maintain any statutory record of possession, acquisition, storage, captive breeding and domestic trade of wild animals/birds within India under the Wild Life (Protection) Act, 1972, the Customs Act, 1962, the Code of Criminal Procedure nor the Indian Penal Code - Therefore, it appears that the Government of India in the absence of any regulation to cover "exotic species" appears to have framed the scheme of Voluntary Disclosure (Annexure-2) and provide for making declarations, whereby the declarant would not be required to produce any documentation in relation to "exotic live species" in its possession, provided the same is declared within six months from the date of issue of advisory. It is clear from the advisory that any declaration made after six months from the date of issue of such scheme, a declarant would be required to comply with the documentation requirements under the extant laws and regulations. Therefore, persons who are holders of such exotic species in the country within India are required to upload the requisite form on the official website of the Government of India in order to complete the stock registration process. Such registration will be done for the stock of animals/new progeny as well as for import and exchange.
The apparent objective behind the scheme further appears to be to streamline the CITES compliances and provide procedure for import of "exotic live species" and requires their registration/declaration of the progenies of such imported "exotic live species".
Once a person has made a declaration under the Voluntary Disclosure Scheme under Annexure-1 & Annexure-2, the immunity provided under the said advisory scheme introduced by the Government of India cannot be set at naught by use of Section 108 of the Customs Act, 1962, in order to compel a declarant to divulge the information in respect of such immunity, as promised to the declaration under the Voluntary Disclosure Scheme by the Central Government. It is clear therefrom that once a person has made a declaration under the Voluntary Disclosure Scheme under Annexure-1 & Annexure-2, such persons cannot be proceeded against on the basis of information provided in such declaration and it would not be proper to allow any investigation under the provisions of the Customs Act, 1962, to be initiated at-least till the limited time provided under the Voluntary Disclosure Scheme in order to make declaration thereunder - a declarer who files a declaration of course within the time stipulated therunder, cannot be made subject to any action under the Customs Act, 1962 or any other law in respect of the stock in the guise of any charge of smuggling or dealing in or possessing the smuggled exotic species, whether on conjectures or surmises, or on the strength of any oral statement.
Since the Union Government acting through the Ministry of Environment, Forest and Climate Change for granting immunity, though for a limited period of six months from the date of issue of such notification to the public at large, the object behind such Voluntary Disclosure Scheme being in larger public interest, is required to be promoted by all Government Departments in order to ensure that any declarer under the scheme is not subjected to any other penal or confiscation under any enactment. If any action is initiated, in such circumstances within the period stipulated in the notification, the same would be clearly, manifestly arbitrary and illegal.
Section 108 of the Customs Act, 1962 is intra vires accordingly declining the prayer impugning the said provision.
Insofar as the prayer for issuance of circular in this regard is concerned, we refrain from issuing any such direction, as prayed for, while leaving the same to the wisdom and discretion of the appropriate departments including the Central Board of Indirect Taxes.
Petition disposed off.
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2020 (10) TMI 645 - MADHYA PRADESH HIGH COURT
Restriction on export of KN96 masks - RBI prohibited Merchanting Trade Transactions (MTT) / Receipt of consideration in foreign currency - Validity of circular issued by the Reserve Bank of India dated 23/01/2020 which is in respect of Merchanting Trade Transactions (MTT) - Reserve Bank of India has refused the permission for the subject MTT contract for supply of KN95 masks from China to United States of America - petitioner's contention is that prohibition imposed by Reserve Bank of India is a total prohibition which violates petitioner's fundamental rights guaranteed under Section 19(1)(g) and 21 of the Constitution of India and therefore, Clause 2(iii) deserves to be struck down by this Court.
HELD THAT:- The Government of India has issued a notification dated 28/07/2020 and later on 25/08/2020 which has already been reproduced earlier and N-95 / FFP2 Mask or its equivalent are under “restricted” category - The Reserve Bank of India has to be adhere to the policy decision taken by the Government of India and in that backdrop the Reserve Bank of India issued executive instructions / circular dated 23/01/2020. Once import of a particular product is barred or export of a particular product is barred, the question of permitting the Merchanting Trade Transactions in respect of that particular products does not arise.
The circular dated 23/01/2020 provides a restriction upon the Merchanting Trade Transactions and goods which are permitted for export / import under the prevailing Foreign Trade Policy can be subjected to Merchanting Trade Transactions. The Merchanting Trade Transactions also requires adherence to all rules, regulations and directions applicable to exports (except Export Declaration Form) and imports (except Bill of Entry) - The conditions imposed by Government of India as well as Reserve Bank of India are of general application to every Indian entity wishing to carry on Merchanting Trade Transactions. The conditions are neither specific either to petitioner's business, nor to a particular products such as Ventilators or Medical Personal Protective Equipment.
The Merchanting Trade Transactions involves foreign exchange and issuance of a Letter of Credit in India from a banker as well as Reserve Bank of India through its authorised dealer in foreign exchange. The banker as well as Reserve Bank of India are located in India and therefore, there is a clear nexus between the transactions and the involvement of foreign exchange reserves of Reserve Bank of India - The Foreign Trade Policy is in existence framed by Government of India in exercise of powers conferred under the Foreign Trade (Development & Regulation) Act, 1992 and notifications have been issued by Government of India keeping in view the powers conferred by Section 3 of the Act of 1992. Its purely a policy decision taken by Government of India in larger public interest as there is an acute shortage of the goods which are the subject matter of the present writ petition.
Thus, in short the statutory provisions, rules, circulars and notifications issued from time to time permits Merchanting Trade Transactions only in respect of goods that are permitted for export and import under the prevailing Foreign Trade Policy of India and the question of complete ban in respect of freedom of trade and commerce as argued by learned counsel does not arise.
In our country keeping in view the COVID-19 Pandemic large number of front line health workers and Doctors have succumbed to Corona Virus on account of inadequate Personal Protective Equipment Kits. The Ventilators are also in short supply and therefore, the Government of India is the best judge either to ban export of the aforesaid items or to place the aforesaid items under the restricted categories.
It is true that the Constitution of India guarantees fundamental right in respect of freedom of trade and commerce, however, the same can be subjected to reasonable restrictions as the same has been done in the present case.
The restriction imposed by Government of India and Reserve Bank of India amounts to reasonable restriction and in noway violating the freedom of trade and commerce as pleaded by the petitioner - Petition dismissed.
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2020 (10) TMI 644 - BOMBAY HIGH COURT
Jurisdiction - power of adjudicating authority to question the action of Director General of Hydrocarbon, Government nilegaonkar 1/3 5-wp-1794.2017.odt of India in making the amendments to the Essentiality Certificate dated 4/11/2013 - HELD THAT:- After having minutely considered the impugned order in original as well as the judgments cited at the bar, prima facie we are of the view that the adjudicating authority was not justified in discarding the amendments to the Essentiality Certificate; thus imposing customs duty, interest and penalty on the petitioner who is a subcontractor of Oil and Natural Gas Corporation (ONGC), engaged in providing offshore drilling and production services in relation to oil exploration at various sites in Mumbai High.
Since pleadings are complete, list the matter for final hearing on 26/11/2020.
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2020 (10) TMI 643 - MADRAS HIGH COURT
Refusal to issue the Detention Certificate - waiver of Demurrage Charges - HELD THAT:- We are satisfied that while the matter has been remanded back to the learned Commissioner, the demand made under the said order, on account of Detention Certificate not being issued by the Commissioner of Customs, cannot be sustained for the time being and therefore, payment thereof, in favour of the respondents 3 and 4 viz., Deputy General Manager Cargo, Airport Authority of India, Chennai, and the Assistant General Manager (F&A), Airport Authority of India, Chennai, cannot arise. Such payment can be made, if, only after such reconsideration on remand, the concerned Commissioner again passes a fresh order and sustains the order against the Appellant. The said order obviously has to be passed after giving due and reasonable opportunity of hearing to the Appellant to ascertain as to whether reasons for delay in issuing the permission for transshipment was on account of fault of the officials at the Chennai Airport during the relevant period or on account of any fault of the Appellant, the custodian of the goods at the relevant point of time.
The learned Commissioner is directed to decide the issue once again, as directed by the learned Single Judge, as expeditiously as possible, preferably within a period of six weeks from today - appeal disposed off.
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2020 (10) TMI 642 - CESTAT MUMBAI
Condonation of delay of around 4700 days in filing the appeal before the Tribunal - HELD THAT:- There is no denial in the communication dated 30.8.2019 placed on record by Revenue, about the aforesaid date of service of the impugned order by the department on the applicant. Thereafter as per the case records, the appeal has been filed by the applicant immediately on 26.7.2018 with the instant application. No doubt the Tribunal can condone the delay on showing the sufficient cause for not filing the appeal within the normal period of limitation.
The Hon’ble Supreme Court in the matter of Perumon Bhagvathy Devaswom v. Bhargavi Amma [2008 (7) TMI 836 - SUPREME COURT] has laid down that the words “sufficient cause for not making the application within the period of limitation should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words ‘sufficient cause’ in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant”.
Therefore in the peculiar facts of this case, sufficient cause has been shown by the applicant for not preferring the appeal within the normal period of limitation. There is some negligence on the part of the applicant also as he did not take any steps to inquire about the status of his case before the adjudicating authority for so many years, therefore although I am condoning the delay but with a cost of ₹ 5,000/- to be deposited by the applicant within a period of 8 weeks to be paid to the “PM CARES Fund”.
Application allowed - the registry is directed to list the appeal for hearing on its turn after the applicant file the proof of payment of cost with the Registry.
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2020 (10) TMI 600 - PATNA HIGH COURT
Grant of Bail - offence punishable under Section 27(b)/27(d)/28 of the Drugs and Cosmetic Act, 1940 - Section 7/11/46/47 of the Customs Act - Section 21/22(c) of the NDPS (Amendment) Act - HELD THAT:- Medicines have been recovered from the house of the petitioner in an alleged search. Without disclosing the source from where he had obtained the medicines, the petitioner was selling the same illegally.
Let the petitioner, above named, be released on bail on furnishing bail bond of ₹ 10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of the learned District & Sessions Judge, Madhubani, in connection with Laukaha P.S. Case No.162 of 2020 (G.R. No.12 of 2020), subject to the conditions imposed - bail application allowed.
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2020 (10) TMI 599 - ALLAHABAD HIGH COURT
Grant of Bail - Sections 135 of Custom Act, 1962 - Smuggling - Gold biscuits - valuation of the gold biscuits is below one crore - section 102 of and 104 of Custom Act - HELD THAT:- Having considered the material on record, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of DATARAM SINGH VERSUS STATE OF UTTAR PRADESH AND ANR. [2018 (2) TMI 410 - SUPREME COURT] and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with certain conditions imposed.
Bail application allowed.
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2020 (10) TMI 598 - MADRAS HIGH COURT
Refusal of grant a P5 licence to the Appellant - Section 6 F of the Explosives Act, 1884 (the Explosives Act) read with Rule 121 of the Explosives Rules, 2008 (the Explosives Rules) - whether the Appellant was entitled to import ammonium nitrate? - HELD THAT:- It is clear that an existing importer is entitled to apply for a licence within six months from the date of entry into force of the Ammonium Nitrate Rules and to comply with the provisions of the Rules within one year from the date of publication thereof. In the case on hand, the Appellant applied for a P5 licence on 05.08.2015, and the said application was rejected on 19.08.2015. Once the application for a licence was rejected, in our view, the Appellant is not entitled to rely upon the proviso to Rule 5, which provides for additional time during the transitional period to enable persons dealing with ammonium nitrate, as of the date of entry into force of the Ammonium Nitrate Rules, to apply for a licence and to comply with the Rules. In fact, the proviso to Rule 5 was deleted by a subsequent amendment with effect from 27.09.2018. Even otherwise, on facts, the time limits in the proviso do not apply - the undisputed position is that the Appellant imported 740 MT of ammonium nitrate under bill of entry No.2704255 dated 24.09.2015 from Korea. Thus, it is clear that the import of ammonium nitrate was subsequent to the rejection of the application for a licence. Consequently, there is no doubt that the Appellant violated Rule 6(4)(a) of the Ammonium Nitrate Rules which prohibits a person from importing ammonium nitrate without a valid licence and without complying with the conditions of such licence.
The ammonium nitrate having the chemical formula NH4NO3 or any combination containing more than 45% of ammonium nitrate by weight shall be deemed to be an explosive as per the Explosives Act. This position emerges from the notification dated 21.07.2011 of the Ministry of Commerce and Industry which was issued under Section 17 of the Explosives Act. Keeping in mind the fact that ammonium nitrate is an explosive in any combination containing more than 45% of ammonium nitrate by weight and the admitted fact that the application for import licence was rejected, we conclude that the Appellant was not entitled to import 740 MT of Ammonium Nitrate on 24.09.2015 and, consequently, the detention and subsequent auction of the consignment of ammonium nitrate by the Customs authorities cannot be faulted.
Whether the application for an import licence can be rejected on the ground that the Appellant is a trader? - HELD THAT:- Upon perusal of the Ammonium Nitrate Rules, we do not find any provision that prohibits the grant of licence to a trader. However, it needs to be borne in mind that ammonium nitrate is an explosive. The learned counsel for the first and second Respondents pointed out that the import licence has not been granted to any trader so far on the ground of national security. She explained that ammonium nitrate is used in the manufacture of explosives and, therefore, it would be difficult to track the end use and end users of ammonium nitrate if traders are permitted to import ammonium nitrate for sale to their customers. Upon perusal of Rules 34 and 35 of the Ammonium Nitrate Rules, we find that Rule 34 provides that the District Authority shall verify the antecedents of the applicant including the genuineness of the purpose before granting a no objection certificate.
Appeal dismissed.
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2020 (10) TMI 597 - MADRAS HIGH COURT
Misdeclaration of imported goods - import of huge tonnes of “Used Rubber Tyre Cut into Two Pieces” (used Rubber Tyre with one cut in bead wire) in containers - restricted goods or not - It is the specific case of the respondent/writ petitioner that the said goods are freely importable under policy conditions and also under CTH 40040000 and they had satisfied the conditions of the Exim Policy and they are one of the actual user of the said goods imported - HELD THAT:- In the considered opinion of this Court, in the light of the non taking of stand by the appellants/responds as to the applicability of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 and in the light of the stand taken in the Writ Petitions, it cannot be concluded as a restricted item, for which, provisional release is not prohibited. It is also to be pointed out at this juncture that the third appellant/third respondent in compliance of the order passed in the Writ Petitions has also ordered the provisional release, subject to various conditions.
There is no error apparent in the impugned orders passed and it also protected the interests of both parties. It is also made clear that the claim or otherwise of the Writ Petitioner/Importer is also subject to the out come of the adjudication proceedings, which came to be initiated subsequent to the filing of the Writ Petitions - Appeal dismissed.
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