2019 (3) TMI 715 - AT - Customs

Transferred Duty Free Import Authorization (DFIA) Scheme - import of plastic granules of various grades - 40/2006-Cus. dt. 1.5.2006 - N/N. Amendment by way of N/N. 17/2009-Cus. dt.1.9.2009 - Held that - Discernably, the periods of dispute in the appeals are clearly before the amendment caused w.e.f. 19.02.2009 vide Notification No.17/2009-Cus. dt. 19.02.2009. The retrospective application of that amendment, sought to be brought about by the Government by Section 93 (1) of the Finance Act, 2009 w.e.f. 1.5.2006 has been set aside by the Hon ble High Court. The dispute subsequent to the cut off date of 19.02.2009 will have to be necessarily debated by both sides on merits since same will not be covered by the High Court - impugned order do not sustain - appeal allowed.

Summary

Issues:
1. Validity of retrospective amendment to Customs Notification No. 40/2006-Cus.
2. Applicability of High Court judgment on appeals falling before and after the cut-off date of 19.02.2009.

Issue 1: Validity of Retrospective Amendment:
The issue in this case pertains to the import of plastic granules under the Transferred Duty Free Import Authorization (DFIA) Scheme. The retrospective amendment introduced by Notification No.17/2009-Cus. on 19.02.2009, which amended condition No.(iii) of an earlier notification, was challenged by the appellant. The High Court of Madras, in a judgment dated 01.11.2017, held that the retrospective application of the amendment was impractical and impossible for compliance before the issuance of Notification No.19.02.2009. The High Court ruled that the amendment should be effective only from 19.02.2009 and not retrospectively from 1.5.2006. Consequently, the Tribunal set aside the impugned orders in appeals falling before the cut-off date of 19.02.2009, allowing them with consequential benefits.

Issue 2: Applicability of High Court Judgment:
The Tribunal, after considering arguments from both sides, acknowledged the High Court's decision and the jurisdictional authority it holds. It noted that the High Court's ruling had not been stayed or overturned by a higher court. Therefore, the Tribunal upheld the High Court's decision and set aside the impugned orders in appeals falling before the cut-off date of 19.02.2009. However, for appeals involving periods after this date, the Tribunal adjourned the cases to be heard on their merits since they were not covered by the High Court's decision. These appeals were scheduled for a future date to be debated accordingly.

In conclusion, the Tribunal allowed appeals falling before the cut-off date of 19.02.2009 based on the High Court's judgment, setting aside the impugned orders and granting consequential benefits. Appeals with periods after this date were adjourned for further proceedings. The decision was made in line with the High Court's ruling and the need for judicial discipline to follow the established legal principles.