TMI Blog2019 (5) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... nt does not fall in the category of Nominated Agencies but there is no bar on the importer to import Gold in any form unless it is restricted like Monetary Gold which is covered under CTH 71082000. Appeal allowed - decided in favor of appellant. - C/20005/2019-SM - Final Order No. 20369/2019 - Dated:- 30-4-2019 - SHRI S.S GARG, JUDICIAL MEMBER B.V. Kumar, Advocate For the Appellant Mr. M. Sharan, Asst. Commissioner, AR For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order No. 344/2018 dated 12.10.2018 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has upheld the Order-in-O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued to the importer proposing to (i) confiscate the said Gold Granules under Section 111(d) of the Customs Act, 1962 and (ii) impose penalty under Section 112 of the Customs Act, 1962. After following the due process and after considering the submissions of the appellant, the Original Authority vide Order dated 11.04.2018 ordered for confiscation of the Gold Granules attempted to be imported vide the said Bill of Entry under Section 111(d) of the Customs Act, 1962 and thereafter given an option to the appellant to redeem the said goods under Section 125 of the Customs Act on payment of ₹ 3 Lakh only for the purpose of re-export and also imposed a penalty of ₹ 3 Lakh under Section 112 of the Customs Act, 1962. Aggrieved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Authorized Dealer for allowing remittance of Foreign Exchange against import of Goods Services into India read with Notification No. GSR 381 (E) dated 03.05.2000 issued under Foreign Exchange Management (Current Account Transaction) Rules, 2000. He also referred to the Index attached to this Circular and in particular C.11 which relates to Import of Gold . He also referred the RBI Circular vide Para C.11 import of gold and Paras C.11.1 and C11.2 which reads as follows. C.11 Import of Gold C.11.1 Import of Gold i. The 20:80 scheme of import of gold was withdrawn on November 28, 2014. However, the obligation to export under the 20:80 scheme would apply to the unutilized gold imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975 vide CTH 71081300 Non-Monetary Gold are liable to pay BCD at 10% and the appellant is not claiming any exemptions and is ready to pay the applicable BCD and IGST @ 3% as applicable. He also submitted that the impugned order has relied upon the CBEC Circular No. 27/2016-Cus. dated 10.06.2016 but the same is not applicable in the present case and is only applicable to Nominated Agency importing Gold under the scheme for Export against Supply by Nominated Agencies‟ and not to individuals importing Gold against advance payment or letters of credit for Home consumption, wholesale and retail sales. Learned Counsel also submitted that in the appellant s own case, the CESTAT, Hyderabad Bench has allowed the appeal of the appellant by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegories of importers viz. individuals/firms, status holders/companies, Nominated Agency/Banks etc., each identity have different mode of payment. Admittedly, the appellant does not fall in the category of Nominated Agencies but there is no bar on the importer to import Gold in any form unless it is restricted like Monetary Gold which is covered under CTH 71082000. Further, the reliance on CBEC Circular is also not correct because the said Circular is not applicable in the case of individual importers. Further, this issue has been settled in the appellant s own case with regard to the same Gold Granules at CESTAT, Hyderabad vide its Final Order No. A/31494/2018 wherein the Tribunal has observed in Para 11,12,13 as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anules are not prohibited goods within the meaning of Section 2(32) of Customs Act, 1962. 12. Further, the Customs Act, 1962 does not authorize CBEC to impose prohibitions by way of circulars, since as submitted supra, circular is not law. Therefore, the contention of the learned Commissioner (Appeals) that the Appellants are prohibited from importing gold granules, in terms of Circular No. 34/2016-CUS, dated 04.09.2013 and Circular No. 27/2016-CUS dated 10.06.2016 is not legally sustainable. They are only clarifactory/procedural circulars, to give effect to the exemption contained in the above notifications, with special reference to disposal and monitoring of the gold imported, duty free, by the nominated agencies, in te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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