9911796707
TMI Blog2021 (6) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... at since the goods are not capital goods, they cannot be imported without prior authorisation from DGFT. The respondent by the impugned order dated 06.09.2019 directed their confiscation and also imposed penalty. The respondent before passing the impugned order had issued show cause notice dated 24.09.2018 and also granted an opportunity of personal hearing on 09.04.2019. 2.According to the petitioner, he was not initially served with a copy of the impugned order-in-original. The petitioner claims to have obtained the order only in December 2019. The petitioner has pleaded health grounds as well as Covid-19 pandemic as the reasons for not immediately approaching this Court. 3.The respondent has filed a detailed counter affidavit controver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) in Civil Appeal No.388 of 1956 decided on 04.04.1961. He would also place reliance on the decision reported in (1997) 3 SCC 261 (L.Chandra Kumar vs. Union of India). The Bench which comprised seven Hon'ble Judges of the Supreme Court held that power of judicial review conferred on the High Courts under Article 226 and 227 is a basic and essential feature of the Constitution. 7.The petitioner's counsel is also armed with a recent decision dated 18.02.2021 in W.A.No.493 of 2021 (Mahindra and Mahindra Vs. Joint Commissioner (CT) Appeals and another). The Hon'ble Judges comprising the Division Bench specifically considered Glaxo Smith Kline Consumer Health Care Ltd., decision and held that even if an appeal remedy could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries for their finished products. The manner in which the goods are being used by the manufacturer had also been indicated. More than anything else, he had pointedly contended that there is no policy violation. If the respondents were to still insist that the goods in question are restricted items, then, the onus is on the respondent to get the issue clarified from DGFT. The Customs Act, 1962 is not a standalone legislation. The customs authority is basically an implementing agency. To find out whether the goods can be freely imported or not and whether they are prohibited or restricted, one has to go by the orders issued under the Foreign Trade (Development and Regulation) Act, 1992. Section 3 of the said Act reads as follows : "3.Powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and exemption from customs duties. Section 17 provides for assessment of duty. As per the statutory scheme, the importer will have to make only self assessment. It is for the proper officer to make verification. Section 17 of the Act is as follows : "Assessment of duty. - (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under section 50, shall, save as otherwise provided in section 85, self-assess the duty, if any, leviable on such goods. (2)The proper officer may verify the entries made under section 46 or section 50 and the self assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table. The stand of the customs authority is that they are restricted items. The issue turns on an interpretation of the policy notification issued by the Director General of Foreign Trade. The customs authority on its own ought not to have interpreted as to whether the goods in question can be called as restricted items. The respondent ought to have sought a clarification directly from the concerned authority in DGFT. In the alternative, the respondent could have mandated the petitioner to move the competent authority under Foreign Trade (Development and Regulation) Act, 1992 and obtain a clarification. Instead of doing so, the respondent applied his own understanding of the policy notification. What the respondent has done is not in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
