TMI Blog2017 (8) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... fically allowed the import of R-22 Gas, there is no need of special import license. Cancellation of LOP under which appellant proposed to clear the imported goods - Held that: - right from shipment of goods, import of goods, filing of bill of entry, issue of LOP, broad banding of LOP in respect of R-22 gas and specific permission for import of R-22 gas has taken placed much before the cancellation of LOP i.e. 24-6-2013. Therefore, at the time of import the goods R-22 gas was permitted to be imported and cleared under LOP/permission granted by the Development Commissioner, therefore subsequent cancellation of LOP cannot have retrospective effect. Import shall be governed by the valid license existing at the time of import of goods, subsequent cancellation of the said license will not affect import and clearance of the goods prior to the date of cancellation of license - even though LOP was cancelled on 24-6-2013, the same will not adversely affect the import of the goods taken place prior to 24-6-0013. Accordingly, the goods were not liable for confiscation. Appeal allowed - decided in favor of appellant. - C/85353/17 - A/88565/17/SMB - Dated:- 19-7-2017 - Mr. Ramesh Nai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority, which was upheld by the Commissioner(Appeals) on the ground that the goods is restricted under Foreign Trade Policy, 2009-2014 and import was allowed under actual user condition from a country which is signatory of Montreal Protocal against specific import licence. As per the findings of the lower authorities, appellant failed to obtain the licence, LOP granted by the Development Commissioner was cancelled vide order dated therefore import of restricted items without having licence is not permitted. Accordingly, goods were rightly confiscated. He submits that import of R-22 gas is restricted items in terms of Foreign Trade Policy 2009-2014, import of which is permitted subject to compliance the condition of obtaining licence for import, actual user condition and import should be from a country, Member of signatory of Montreal Protocol, 1987. As regard requirement of licence from the authority, he submits that as per Policy circular No.47/08.02.2006, licences for import of R-22 gas will be issued by DGFT in cases where clearances have been given by the MOEF. He submits that in their case since unit is 100% export oriented unit, the licensing authority is Development C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. However, the adjudicating authority vide Order dated 10-2-2014 held that the said goods not liable for confiscation and allowed clearances. He submits that there is no change in the circumstances from the above referred cases, therefore there is no reason for confiscation of the present consignment. As regard the contention of the lower authority that LOP regarding import of R-22 gas was cancelled by the Development Commissioner vide his order dated 24-6-2013, he submits that at the time of import, the license was very much valid. Accordingly, during the validity of an import authorization, the clearances of the goods cannot be denied and goods were not supposed to be confiscated. In this regard, he placed reliance on following judgments: (a) Blue Blends (India) Ltd. [2001(136) ELT 411 (Tri. Mumbai)] (b) P.T. Impex Pvt. Ltd.[2014(302) E.L.T. 154(Tri.-Del)] (c) P.T. Impex Pvt. Ltd.[2015(321) ELT 38(P H)] (d) Bhagwan Electro Photocopiers [2013(292) ELT 381(Tri.-Del)] (e) Arjun Sahlot[2016(344) ELT 44(Del)] (f) Rakesh Kumar Co. [2007(220) ELT 47(Bom.)] He submits tha.t as per the, licensing policy, there is no dispute that appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibited goods therefore the said goods is permitted to be imported as per LOP dated 3-1-2011. It also observed that on 3-5-2011, request of the appellant for broad banding of LOP in respect of refrigeration gas R-22 gas was allowed by the Development Commissioner, which is scanned below: Therefore vide letter dated 29-5-2012, Development Commissioner has granted specific permission for import of R-22 gas which is scanned below: From the LOP dated 3-1-2011, letter dated 3-5-2011 for broad banding of LOP in respect of R-22 Gas and letter dated 29-5-2012 by which specific permission wets granted for import of R-22 Gas. It is clear that appellant had indeed valid license in possession for import of R-22 gas. As regard the contention of authority that LOP is not sufficient for allowing of import of restricted items, appellant should have obtained specific import license. In this regard, I refer to para 6.2.7 of Handbook of Procedure which reads as under :- 6.2.7. LOP/LOI issued to EOU/EHTP/STP/BTP units by concerned authority would be construed as an authorization for all purposes. From the above para of the policy, it is clear that once the LOP is obtained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry = 07.01.2013 to 28.01.2011 Date of 1-09 (R-134 Gas) = 03.01.2011 Date of Broad Bandina (R-22 Gas) = 03.05.2011 Date of 'Permission for import. of R-22 Gas' = 29.05.2012 Date of Cancellation of LOP License = 24.06.2013 From the above dates, it can be seen that right from shipment of goods, import of goods, filing of bill of entry, issue of LOP, broad banding of LOP in respect of R-22 gas and specific permission for import of R-22 gas has taken placed much before the cancellation of LOP i.e. 24-6-2013. Therefore, at the time of import the goods R-22 gas was permitted to be imported and cleared under LOP/permission granted by the Development Commissioner, therefore subsequent cancellation of LOP cannot have retrospective effect. This issue has been time and again analyzed by the Tribunal. In case of Blue Blends (India) Ltd(supra) , Tribunal has observed as under: 12. On the contrary, there are many decisions of the Tribunal taking the opposite view, stating categorically that the consequences of cancellation of licence do not reach back so as to affect the imports during the currency of licence. Some of these are K.K. Manufacturing Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal dealt with similar issue and observed as under: 4. The Hon'ble Supreme Court in the case of Priyanka Overseas Pvt. Ltd. v. Union of India reported in 1991 (51) E.L.T. 185 (S.C.) has held that the restriction imposed subsequent to the loading of the goods cannot act as prejudice to the importers claim and cannot be made the reason for confiscation of the goods or for imposition of penalties. The said decision stand followed by the Tribunal in the case of Paras Textiles v. CC, New Delhi reported in 2009 (238) E.L.T. 372 (Tri-Del.). Another reference can be made to Hon'ble Delhi High Court decision in the case of Om Petro Chemical v. Union of India reported in 2002 (140) E.L.T. 353 (Del.) . As such, we find that the issue is settled laying down that subsequent introduction of the restriction on import cannot act prejudice to the imports already initiated. As such, we find that confiscation of the goods or imposition of penalty on this count is not justified. In case of Rakesh Kumar Co. (Supra), Hon'ble Bombay High Court held as under: 4. There is no dispute that the contracts were registered with Narcotic Commissioner, Gw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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