TMI Blog2016 (5) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... nder para 1.5 of Foreign Trade Policy, 2009-2014 therefore even though the goods were declared prohibited on 18/2/2011 transitional provision was restricted in certain condition by notification No. 37(RE-2010)/2009-2014 dated 24/3/2011. But the fact remains that on the date of entry of the goods in terms of Section 50 the goods were not prohibited therefore confiscation under Section 113(d) was not warranted. It is also noted that at the time of opening L.C., dispatch of the goods from the factory to the port, filing of shipping bill before the customs, the goods were not notified as prohibited goods therefore it is beyond the control of exporter to avoid the dispatch of the goods from the factory to the port. Therefore, the goods cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22/2/2011 and 23/2/2011. The goods were not handed over to customs for examination and export till 18/2/2011 instead permission for back to town of the said goods was sought vide letter dated 25/4/2011 after gap of more than two months. The said carted goods became prohibited goods in the light of DGFT Notification No. 23(RE-2010/2009-2014 dated 18/2/2011 and the same cannot be permitted for export in light of DGFT Notification No. 37(RE-2010)/2009-2014 dated 24/3/2011 which is specifically states that only six consignments of skimmed milk powder was permitted for export which were handed over to customs for examination and export on or before 18/2/2011. As per above facts of the matter, it was contended in the Adjudication orders that ski ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 37(RE-2010)/2009-2014 dated 24/3/2011 curtailed the provision of para 1.5 of Foreign Trade Policy in respect of skimmed milk powder according to which only six consignments were allowed to be exported which were handed over to customs for examination and export on or before 18/2/2011. In view of above prohibition and subsequent notification dated 24/3/2011 it is crystal clear that when the shipping bill were filed on 10/2/2011 and 16/2/2011 there was no prohibition for export of skimmed milk powder even on date of carting the goods on 23/2/2011, transition provisions were available for the appellant in terms of para 1.5 of Foreign Trade Policy. Therefore the goods were not prohibited during this period. Even notification dated 24/3/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms area on 22/2/2011 and 23/2/2011 even on that dates appellant was entitle for transitional provisions as provided under para 1.5 of the Foreign Trade Policy, 2009-14, according to which despite notification dated 18/2/2011 imposing prohibition on the said goods the appellant was entitle to export the goods before the expiry of the L.C. period. In view of this position, the appellants goods cannot be treated as prohibited goods when lying in the customs area. At the most, if the export is not permitted, the right course of action on the part of the Commissioner was that he should have allowed the exporter to take the goods back to town and therefore goods were not liable for confiscation. I find that Ld. Commissioner confiscated the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010/2009-2014 dated 18/2/2011 read with transitional provision as provided under para 1.5 of Foreign Trade Policy, 2009-2014 therefore even though the goods were declared prohibited on 18/2/2011 transitional provision was restricted in certain condition by notification No. 37(RE-2010)/2009-2014 dated 24/3/2011. But the fact remains that on the date of entry of the goods in terms of Section 50 the goods were not prohibited therefore confiscation under Section 113(d) was not warranted. It is also noted that at the time of opening L.C., dispatch of the goods from the factory to the port, filing of shipping bill before the customs, the goods were not notified as prohibited goods therefore it is beyond the control of exporter to avoid the dispat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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