TMI Blog2014 (2) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... crystallised prior to 07.04.2006 - since the import of the sandalwood was bonafide, there is no justification for imposing a redemption fine or confiscating the goods; and that existence of a concluded contract could be inferred from other circumstances, even in the absence of an irrevocable letter of credit. The material on record establishes on the basis of the relevant circumstances that an agreement between the parties for the export and import was entered into and had crystallised prior to the change in the policy - where an importer has entered into a contract in good faith, at a time when goods were importable freely, without restrictions; and had no means to forseeing restrictive changes in the import policy, there is no justificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally released, be not confiscated; penalty imposed and the bank guarantee dated 17.11.2006 invoked/ encashed. In response, the appellant on 03.05.2008 inter alia pleaded that in terms of paragraph 1A.5 of the Foreign Trade Policy 2004-09, since a firm contract was entered into and bills of lading and other supporting documents furnished establish even payments made for import of the sandalwood, prior to alteration of the policy, restrictions subsequently imposed on import of sandalwood (on 07.04.2006) would not be applicable. Appellant also relied on the judgments of the Bombay High Court and of this Tribunal to support his contention. 3. By the order dated 30.12.2008 the Additional Commissioner, Central Excise, Delhi-III ordered confisca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Agency Limited, Fiji had issued a proforma invoice No. 12809 for export of 4 MT of sandalwood (Yasi) on 30.03.2006, at a price of US$ 38000. The appellant remitted US$ 38,000 to the credit of the exporter on 30.03.2006 itself. On 07.04.2006 Policy Circular No. 1(RE-2006) 2004-06 dated 07.04.2006 was issued clarifying that import of sandalwood under EXIM Code No. 44039922 would be restricted and subject to ceiling of 5000 cum each year and that imports would be permitted only against import licence issued. There is on record a customs invoice dated 11.04.2006, issued by Republic of Fiji, certifying supply of 3482 kg. of sandalwood by M/s Pacific Customs Agencies Limited to the appellant, specifying the container number in which export w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such restriction; however a time limit for operationalising such LCs may be prescribed. 8. In the light of the fact that the proforma invoice is dated 30.03.2006, the remittance for the value of sandalwood to be imported was also made on 30.03.2006; the customs invoice, the fumigation certificate and the Bill of lading, though issued later establish a concretised agreement for export of sandalwood prior to 07.04.2006 (when the restriction on import of sandalwood were issued by the policy circular). The agreement to import the sandalwood thus got crystallised prior to 07.04.2006. The High Court decision in Matraco (India) Ltd. vs. Union of India 2003 (162) ELT 1992 (Bom.) is an authority for the proposition that since the import of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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