2024 (4) TMI 638 - AT - Customs

Non-compliance with the remand order of the Tribunal in the earlier round of litigation - import of rough marble blocks - Revenue submitted that, notwithstanding grant of licence subsequent to import, the appellant was not entitled to clear the goods in the absence of licence at the time of import - HELD THAT - The jurisdictional Commissioner of Customs was bent upon demonstrating statutory superiority over other agencies of the State as the final arbiter of national interest. This is evident from the refusal to await outcome of application pending before the Directorate General of Foreign Trade (DGFT) and proceeding to penalise the import and importer. Even after the altered factual situation had been highlighted by the Tribunal in remand order and necessity of considering this as relevant to the outcome implicit in the remand order, the adjudicating authority remained obdurate. The authority has even gone to the extent of denigrating superior appellate 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 General of Foreign Trade (DGFT) is beyond the oversight afforded to officers of customs under Customs Act, 1962. There are no reason for such illegality, as articulated in the impugned order, to survive - the impugned order is set aside - appeal allowed.

Summary

Issues Involved:
1. Non-compliance with the remand order of the Tribunal.
2. Validity of import without a special license at the time of import.
3. Adjudicating authority's disregard for judicial directions and statutory limitations.

Summary:

1. Non-compliance with the remand order of the Tribunal:
The appeal of M/s Dee Pearls (India) LLP against the order of the Commissioner of Customs pertained to the non-compliance with the remand order of the Tribunal. The Tribunal had earlier remanded the matter back to the original authority for reconsideration in light of the license obtained by the appellant. The Tribunal's final order stated, "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."

2. Validity of import without a special license at the time of import:
The adjudicating authority reiterated the predecessor order, stating that the import of rough marble blocks was restricted under the Foreign Trade Policy 2004-2009 and required a special license. The authority found no documentary evidence that the importer had applied for the license before the shipment/import of the goods, thus contravening Section 3(2) of the Foreign Trade (Development & Regulation) Act, 1992, making the goods liable for confiscation u/s 111(d) of the Customs Act, 1962, and the importer liable for penal action u/s 112(a) of the Customs Act, 1962.

3. Adjudicating authority's disregard for judicial directions and statutory limitations:
The Tribunal noted that the jurisdictional Commissioner of Customs was insistent on demonstrating statutory superiority, refusing to await the outcome of the application pending before the Directorate General of Foreign Trade (DGFT) and proceeding to penalize the import and importer. The Tribunal observed, "Such defiance of appellate directions suffices to invalidate the impugned order." The Tribunal emphasized that the issue was not over customs duties but the implementation of a prohibition that could only be overcome with a license from DGFT. The Tribunal concluded that the adjudicating authority's findings were not in consonance with the statutes and judicial determinations, stating, "The exercise of authority by the Directorate General of Foreign Trade (DGFT) is beyond the oversight afforded to officers of customs under Customs Act, 1962."

Conclusion:
The impugned order was set aside, and the appeal was allowed, with the Tribunal finding that the adjudicating authority's actions were not in line with judicial discipline and statutory limitations. The order pronounced in the open court on 08/04/2024 concluded that the illegality articulated in the impugned order could not survive.