2018 (3) TMI 422 - AT - Customs

Conversion of License - power of DGFT to issue Advance License retrospectively - Held that - In the case of Bhilwara Spinners Ltd. 2011 (3) TMI 112 - BOMBAY HIGH COURT , the Hon ble High Court has observed that DGFT is empowered to amend or modify the license retrospectively - demand set aside - appeal dismissed - decided against Revenue.

Summary

Issues:
- Mis-declaration of imported goods
- Validity of Advance License amendment
- Power of DGFT to amend license retrospectively

Mis-declaration of imported goods:
The case involved the mis-declaration of imported goods by the respondents to avoid duty payment under an Advance License. The respondents imported knitted pile fabric mis-declared as acrylic and polyester fur fabrics. The authorities issued a show cause notice for confiscation and penalties. The original authority reclassified the goods, confirmed duty with interest, and imposed fines and penalties. The Commissioner (Appeals) later allowed the appeal, setting aside the demand, confiscation, and penalties. The Tribunal upheld the Commissioner's decision, citing the amendment of the Advance License to include the description of the imported goods as a valid reason for setting aside the penalties.

Validity of Advance License amendment:
The main contention was whether the DGFT had the authority to amend the Advance License retrospectively to include the description of the imported goods. The department argued that such retrospective amendments were not permissible. However, the respondent cited a case where the High Court upheld the DGFT's power to make such amendments. The Tribunal noted that Rule 8 of the Foreign Trade (Regulation) Rules, 1993 allows the licensing authority to amend licenses as necessary. The Tribunal relied on the High Court's decision and held that the DGFT was empowered to make retrospective amendments to licenses, including the description of goods, thereby supporting the respondent's position.

Power of DGFT to amend license retrospectively:
The Tribunal referred to a specific case where the High Court affirmed the DGFT's authority to retrospectively amend licenses. The High Court emphasized that once the licensing authority confirms fulfillment of license conditions, customs authorities cannot challenge the imports or take action against the licensee. The Tribunal, in line with the High Court's ruling, dismissed the department's appeal, upholding the Commissioner's decision based on the authority of the DGFT to make retrospective amendments to licenses. The Tribunal found no reason to interfere with the impugned order, ultimately dismissing the Revenue's appeal.

This detailed analysis of the judgment highlights the mis-declaration of imported goods, the validity of the Advance License amendment, and the power of the DGFT to amend licenses retrospectively, providing a comprehensive understanding of the legal issues and the Tribunal's decision.