2019 (5) TMI 81 - AT - Customs

Import of restricted item - Gold Granules of Purity 99.99% (Non-Monetary) - It is the case of the Revenue that import of Gold Granules is permitted only through a Nominated Bank or a Nominated Agency, or a Holder of Status of Star and Premier Trading Houses, subject to RBI Regulation and procedure prescribed in this regard - HELD THAT - Since the appellant is not a Nominated Bank or a Nominated Agency or a Holder of Status of Star and Premier Trading Houses, the restriction procedures and clarifications issued by the RBI relating to import of Gold/Gold Granules do not entitle the payment to import the Gold Granules in question. 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. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Import of Gold Granules of Purity 99.99% in violation of Import Policy.

Analysis:
The appeal challenged an order upholding the confiscation and penalty imposed on the appellant for importing Gold Granules of Purity 99.99% in violation of the Import Policy. The appellant imported the goods not being a Nominated Bank or Agency as required by the policy. The appellant argued that the Gold Granules were freely importable under ITC/HS 2017, subject to RBI Regulations, and the payment method complied with RBI directives. The appellant contended that they were a general importer, not subject to the restrictions applicable to Nominated Agencies. Additionally, the appellant highlighted that the Gold Granules were not restricted goods under the Customs Tariff Act, 1975. The appellant also cited a favorable decision by CESTAT Hyderabad in a similar case.

The Tribunal analyzed the dispute concerning the import of Gold Granules of Purity 99.99% under Chapter Heading 71081300. It was noted that the Import Policy allowed import through Nominated Banks or Agencies, subject to RBI Regulations, which the appellant did not meet. However, as per ITC/HS 2017, Non-Monetary Gold/Gold Granules were freely importable under RBI Regulations. The Tribunal clarified that the RBI Regulations determined payment modes for different categories of importers, and the appellant, not being a Nominated Agency, was not prohibited from importing Gold Granules unless they were Monetary Gold. The reliance on CBEC Circular was deemed incorrect as it did not apply to individual importers. The Tribunal referenced a previous ruling by CESTAT Hyderabad, where it was held that the appellant was eligible to import Gold Granules under RBI's Master Direction No. 17/2016-17, and the circulars did not impose prohibitions on importers not covered by the exemptions.

Consequently, the Tribunal found the impugned order unsustainable in law and set it aside, allowing the appeal with consequential relief. The customs authorities were directed to clear the goods upon payment of the appropriate duty rate. The decision aligned with the precedent set by CESTAT Hyderabad in a similar case, supporting the appellant's eligibility to import Gold Granules under RBI regulations.

Conclusion:
The Tribunal ruled in favor of the appellant, setting aside the impugned order and allowing the appeal with consequential relief. The decision was based on the appellant's compliance with RBI regulations for importing Gold Granules, as clarified in ITC/HS 2017, and the lack of prohibitions on importers not falling under specific categories like Nominated Agencies.