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TMI Blog2011 (10) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... om China by using the name of one M/s. Dongch International, a proprietary firm of Shri Inder Prasad Negi. According to the Revenue, the import of Chinese raw silk could be made only by the persons residing along the border and the exemption notification No. 38/96-Cus dated 23.7.96 was available only to the local persons residing along with the border area. As such, revenue entertained a view that M/s. Krishna Impex International has wrongly availed the benefit of the exemption in question by showing import under the name of a local firm M/s. Dongch International. 3. Accordingly, proceedings were initiated against them proposing demand of duty, confiscation of goods and imposition of penalty. The said show cause notice so issued to the appellants culminated into impugned order passed by the Commissioner. 4. Without going to the details of the developments, during the period of investigations, we find that the short issue involved in the present appeal is as to whether the import of Chinese raw silk is entitled to the benefit of notification No. 38/96, irrespective of the fact as to whether the importer is a border resident or not. The adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Garbyal (Appeal No. C/26-28/ 2008) vide Final Order No. C 323-325/11 dated 14.7.11, it was held as under: 16. Having observed that there is no such condition in the notification, which stands allegedly contravened by the importer and this fact having been accepted by the Revenue also, we proceed to deal with the objections which have been made the basis for denial of the benefits of notification by the adjudicating authority. The MoU entered into by the two countries is an international obligation and has to be converted into domestic law to operationalize the same., The said MoU is required to result in enactment of law for giving an effect to the same. To deny the benefit of notification, which admittedly does not refer to any border trade, on the basis of the said MoU, without there being any corresponding Act or Notification, is neither justified nor warranted. The notification in question was issued in 1996 i .e. after the MoU was arrived at on 13.12.1991. If the imports through Gunji land route was meant to be only between the residents of the border areas, the notification could have spelt the same. There being nothing in the said notification, we are very clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided for any condition, subsequent circular cannot impose such condition as the same would tantamount to re-writing the notification or in other words legislation - by circular, which is not permissible in law. Admittedly a notification issued under the provisions of a particular ;pct require publication in the official gazette as well as requires tabling before both the houses of the Parliament and if that exercise has been carried out without condition being imposed in the notification, it would not be permissible to permit Revenue to impose such conditions by way a circular. The letters of Ministry of Finance and of Commerce relied upon by the Commissioner are internal correspondences between the departmental officers and the same are not a part of the legal enactments. The same cannot be used to curtail the benefits otherwise available to the appellants under the notification. If there was any such intention on the part of the Revenue to impose restriction on border trade, nothing prevented them to introduce such a condition in the notification itself. 18. At this stage we may refer some of the internal correspondence made between the department which stands placed on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng border trade were clear but the same were not incorporated in the notification in question. The Commissioner, Lucknow expressed his apprehensions about the same and also requested the Government to introduce such condition in the notification itself and that having not been done, reliance on such internal correspondence by the adjudicating authority to hold against the appellant, is not appropriate. 19.1At this stage we may refer to Advance Ruling dated 29.08.2006 given in the case of one Shri Akash Jain. It stands held in the said ruling, while dealing with the scope of notification No. 38/96-Cus dated 23.7.1996, that there is no condition except limiting the import of such goods from China through a specified land customs station and along the specified land routes, for getting the benefit of exemption of duty under notification. It was held that the exemption notification has no actual user condition after the specified goods are imported. As such, the objections of the Commissioner that the silk was not actually imported by M/s. Krishna Enterprises under the proprietorship of Shri Krishna Singh Garbyal but the owner of the same was M/s. Elegant Industries, thus disent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... release of the seized goods, but such observations support the view which we have already arrived at. As such, we find no reasons to deny the exemption notification in question irrespective, of the fact whether M/s. Krishna Enterprises is the actual importer or imports stands financed by M/s. M/s. Elegant Industries." 7. The ratio of law as declared in the above decision is clearly applicable to the facts of the present case with the only difference that the raw silk was imported in that case through Gunji Route whereas in the present case the importation is from shipkila pass. Undisputedly, both the routes are specified routes and nothing turn on the same. The Commissioner in the present impugned order referred and relied upon the same Memo of understanding between India and China, the same circular and same clarification letters issued from various field formations. The Tribunal in the above referred decision of Krishna Sing Garbyal having held that such memo of understanding, clarification and circulars etc. cannot lay down the law contrary to the normal wordings of the notification which nowhere puts any restriction to the import of raw silk through the route in question, and ..... 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