2017 (10) TMI 96 - 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.

Issues:
1. Challenge to restrictions on clearance of imported gold coins
2. Challenge to Show Cause Notice issued by Commissioner of Customs
3. Date of import determination under Foreign Trade Policy
4. Examination of Bill of Entry before arrival of consignments
5. Allegation of import restrictions violating Comprehensive Economic Partnership Agreement
6. Publication of notifications in Official Gazette before import date
7. Legal effectiveness of notifications based on publication date
8. Prayers for provisional release of imported consignments
9. Balance of convenience in granting interim relief
10. Direction for provisional release of consignments with bond requirement
11. Stay on proceeding with Show Cause Notice till next hearing
12. Importers' requirement to furnish Bank Guarantees for verification process

Analysis:
1. The petitioner challenged restrictions on clearing imported gold coins and a Show Cause Notice issued by the Commissioner of Customs. The petitioner argued that the consignments were imported before the notifications imposing restrictions were published in the Official Gazette. The Court considered the legal effectiveness of the notifications based on the publication date and granted interim relief for provisional release of the consignments.

2. The date of import was crucial in determining the applicability of the restrictions under the Foreign Trade Policy. The petitioner presented a Bill of Entry before the arrival of the consignments, asserting that the customs officials were unaware of the restrictions at the time of examination. The Court analyzed the date of import under the policy and procedural requirements for clearance.

3. The petitioner also raised concerns about the restrictions violating the Comprehensive Economic Partnership Agreement between South Korea and India. The Court examined the provisions of the agreement and their impact on the import restrictions, considering the legal implications of imposing non-tariff measures.

4. The Court reviewed the publication date of the notifications in the Official Gazette and the electronic mode of publication as per the Information Technology Act. The petitioner demonstrated that the notifications were published after the import date, leading to a prima facie case for granting interim relief for the release of the consignments.

5. The Court balanced the convenience of the parties and the potential hardship faced by the petitioner in withholding the consignments. It directed the provisional release of the imported gold coins, subject to the petitioner furnishing a bond for the consignments' value. The Court also stayed the proceedings on the Show Cause Notice until the next hearing.

6. Importers' requirement to furnish Bank Guarantees for the verification process was discussed, with the petitioner highlighting the existing online verification system with South Korea. The Court acknowledged the need for timely verification and allowed for appropriate applications in case of undue delays.

7. The Court set timelines for filing replies and listed the matter for the next hearing, ensuring procedural compliance and efficient resolution of the issues raised in the petition.

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