TMI Blog2024 (4) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority by insisting on restoration of the order discarded by the Tribunal. It is patent lack of refresher episodes in the course of upward mobility of officers that encourages megalomaniac disregard for horizontal and vertical components of governance. Such defiance of appellate directions suffices to invalidate the impugned order. Quantitative restrictions, implemented through special licence regime, is the exclusive remit of the licencing authority. By its very nature, the date of issue of licence is not to material to quantitative restriction; its relevance to the impugned goods alone is. On that there has been no controverting either in the impugned order or in submissions of Learned Authorised Representative. It has not been unknown for the Department of Revenue to issue ad hoc exemption, in exercise of empowerment under section 25 of Customs Act, 1962 and long after goods have been imported and cleared, to regularise such imports in public interest. Sauce for the goose is sauce for the gander too. The findings in the impugned order are not in consonance with the statutes as legislated and law as judicially determined. The exercise of authority by the Directorate Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.02.2012 observed that, We have seen the licence issued by the competent authority permitting the appellant to import a quantity of 2117.74 MT of Rough Marble Blocks;, The said licence though dated 30.06.2008, clearly states that it is valid for goods already cleared by the Customs against undertaking/bond against 13 Bills of Entry as mentioned in the Undertaking dated 12.06.2008. Inasmuch this licence was not produced before the adjudicating authority, the matter needs to be remanded back to the adjudicating authority for reconsideration of the matter afresh in the light of the licence now obtained. Accordingly, we set aside the impugned order and remand the matter back to the adjudicating authority for consideration afresh after giving reasonable opportunity to the appellant to make submissions in their defence. in the impugned order and it is also on record that stay order dated 24th October 2007 of the Tribunal had allowed the impugned goods to be cleared on deposit of ₹ 25,00,000. 3. It would appear that the interim order and order of remand of the Tribunal was substantially influenced by the issue of licence covering not just the value of the imported goods but also sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e table below:- xxxxxx even though cognizance of developments and direction of the Tribunal was taken note of thus 10. The present case has been remanded back by Hon'ble CESTAT on limited issue to decide the case after considering the DGFT Licence dt. 30.06.2008 granted to the Noticee for the goods in question i.e. imported under the 13 Bs/E, which was not available before the original adjudicating authority while deciding the case. Hon'ble Tribunal directed the present Adjudicating authority to decide the case after giving a hearing to the Noticee. xxxxxxx 12. The Noticee has contended that they have obtained the license for import of the entire quantity of 2117.74 MT and accordingly, there is no prohibition that is applicable in the present case warranting confiscation of goods under Section 111(d) and that this is more so in view of the fact that the goods were cleared from customs area, and hence imported in terms of the Customs Act, 1962 only after the applications were approved and the licenses were granted. I have checked the fact of the case. I find that Para 2.12.2 of the relevant Handbook of Procedures stipulates that the validity of an import licence/certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 28 of the policy. The licensing authority therefore had the right to issue an amendment. It is not possible to agree this right cannot be exercised retrospectively. It is no doubt true there is nothing specifically in the policy which permits retrospective application. At the same time, however, there is nothing in the policy which militates against the view that a licence cannot be issued with retrospective effect i.e. for goods already arrived for shipping. The Tribunal in its judgment in Ester Industries Ltd. v. CC, New Delhi - 1995 (75) E.L.T. 635 has accepted the valuation on an amendment made to an import licence which has retrospective application. 8. Nor is it possible for us to accept the reasoning of the Commissioner that because cancellation of licence only operates from the date of cancellation it must necessarily follow the amendment to a licence must only be operative from the date of that amendment. The Supreme Court in its judgment in East India Commercial Corporation - 1983 (13) E.L.T. 1342 (S.C.) = 1963 (3) SCR 338 taken the view, later affirmed in its judgment in UOI v. Sampat Raj Dugal that applying the same principles of contract to grant of an impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is relied upon by the departmental representative in this case. We have already dealt with this holding that the revenue's contention does not necessarily follow. 12. The judgment of the Bombay High Court which the departmental representative cites expressed the view that in deciding the quantity of goods permitted to be imported, the licencing authority could not depart from the claims between exported and imported product specified in the import policy and act arbitrarily. The judgment does not indicate whether there was a contention raised that this could be done if the licensing authority had the discretion to do so. 13. It has therefore to be held that the import of the goods is covered by licence issued and confiscation of clause (d) of section 111 and imposition of penalty under 112 are contrary to law. The appeal is therefore allowed and impugned order set aside. Consequential relief. It was contended that confiscation and imposition of penalty by the adjudicating authority was not in accord with judicial discipline. 6. Learned Authorised Representative took us through the adjudication order and submitted that, notwithstanding grant of licence subsequent to import, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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