2017 (10) TMI 94 - HC - Customs

N/N. 24/2015-20 and 25/2015-20, both dated 25th August, 2017 - Import of Gold from Seoul, South Korea - restricted item - restrictions put upon the import of Gold by the notifications dated 25th August, 2017 - case of petitioners is that they should be allowed to import Gold without any restrictions brought in by the notifications - Held that - The Court proceeds on the basis for the purpose of passing this order, that the two impugned notifications were published in the Gazette electronically in terms of Section 8 of the Information Technology Act read with OM dated 30th September, 2015 issued by the PSP Division, only on 28th August, 2017 i.e. after the dates of the respective imports of the two consignments from Seoul, in South Korea - the Court is satisfied that the Petitioners have made out a prima facie case for grant of interim relief as prayed, for the provisional release of the consignments covered by the B/Es presented by the Petitioners to the Customs Authorities - the Court directs that till the next date of hearing, the SCNs issued to the Petitioners shall not be proceeded with by the Respondents.

Summary

Issues:
1. Import of gold coins under restricted category.
2. Date of publication of notifications in the Official Gazette.
3. Prayers for provisional release of imported consignments.
4. Legality of Show Cause Notices (SCNs) issued by customs authorities.
5. Compliance with Information Technology Act for Gazette notifications.
6. Grant of interim relief for provisional release of consignments.

Analysis:
1. The petitioners imported gold coins from Seoul, South Korea and sought clearance without restrictions imposed by two notifications dated 25th August, 2017. They argued that the import restrictions contradicted the Comprehensive Economic Partnership Agreement between South Korea and India, prohibiting non-tariff measures.

2. The critical issue revolved around the date of publication of the impugned notifications in the Official Gazette. The petitioners contended that the notifications were electronically published on 28th August 2017, three days after the stated date. They presented digital evidence and website screenshots to support their claim.

3. The court examined the legal requirement that statutory notifications must be published as per the law under which they are issued. Citing precedents, the court held that the notifications were effectively published only on 28th August 2017. Consequently, the petitioners made a prima facie case for interim relief for the provisional release of the imported consignments.

4. Despite the petitioners' demonstration of delayed publication, the customs authorities issued Show Cause Notices (SCNs) under the Customs Act, alleging violations of import restrictions. The court directed the authorities to refrain from further action on the SCNs until the next hearing date.

5. The court considered the compliance with the Information Technology Act for Gazette notifications. It was established that the notifications were electronically published on 28th August 2017, in line with the Act's provisions for exclusive electronic publication of government notifications.

6. In granting interim relief, the court ordered the provisional release of the imported gold coin consignments within 48 hours, subject to the petitioners furnishing a bond for 100% of the consignments' value. The court emphasized the balance of convenience and the potential hardship faced by the petitioners due to the prolonged detention of the consignments.

This detailed analysis encapsulates the key legal aspects and proceedings of the judgment, addressing each issue comprehensively.