2022 (3) TMI 239 - AT - Customs

Import of gold bars - Other than Nominated agency - utilization of imported gold in manufacture and export the same - date of the import of the gold in the facts and circumstances of the case? - applicability of provisions of Notification No. 34/2017 dated 18/10/2017 - the gold was freely importable or not, prior to the Notification dated 18/12/2019. What should be the date of the import of the gold in the facts and circumstances of the case? - HELD THAT - The relevant date for import of the goods by air is the date on which Airway bill is issued that on which date goods left the last airport in the country from which the import is affected. Admittedly, in this case the Airway bill has been issued on 17/10/2017 and thereafter there is no control of the importer or the seller of the goods. In that circumstance, in the facts and circumstances of the case, the relevant date for import by air is the date on which Airway bill has been issued i.e. 17/10/2017 - the date of import of the impugned gold is 17/10/2017. Whether the provisions of Notification No. 34/2017 dated 18/10/2017 are applicable to the facts of the case or not? - HELD THAT - As it is already been held that the date of import of the impugned gold is 17/10/2017, further, it is found that the provisions of Notification No. 34/2017 dated 18/10/2017 are applicable, if the Nominated agency imports the gold, the same is required to be manufactured and exported thereof - But in the case in hand, the appellant has imported goods as a Normal importer and filed Bill of Entry as a Normal importer in terms of RBI Guidelines, therefore the provisions of Notification No. 34/2017 dated 18/10/2017 are not applicable to a Normal importer of gold and the said notification is came to be issued after the date of import - Notification No. 34/2017 dated 18/10/2017 is not applicable to the facts of this case. Whether prior to the Notification dated 18/12/2019, the gold was freely importable or not? - HELD THAT - As per the Notification dated 18/12/2019, it has been held that after issuance of the Notification dated 18/12/2019, only Nominated agencies can import the gold with end use condition which otherwise means that prior to issuance of the Notification dated 18/12/2019, the gold was also freely importable - prior to the notification dated 18/12/2019, the gold was also freely importable by the Normal importer in terms of RBI Guidelines. The appellant imported the goods as a normal importer, therefore, the restrictions contained in Notification No. 34/2017 dated 18/10/2017 are not applicable to the appellant and the import has been done prior to introduction of the Notification dated 18/10/2017 - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Date of import of the gold
2. Applicability of Notification No. 34/2017 dated 18/10/2017
3. Freely importable status of gold before Notification dated 18/12/2019

Issue 1: Date of import of the gold
The appellant placed an order for gold import on 12/10/2017, with subsequent invoicing and transportation activities. The Airway bill for transportation was issued on 17/10/2017. The Tribunal determined that the relevant date for import by air is when the Airway bill is issued, which in this case was 17/10/2017. Therefore, the date of import of the gold was held to be 17/10/2017.

Issue 2: Applicability of Notification No. 34/2017 dated 18/10/2017
The Tribunal found that since the gold was imported as a Normal importer and the Bill of Entry was filed accordingly, the provisions of Notification No. 34/2017 dated 18/10/2017, which required manufacturing and exporting of gold by Nominated Agencies, were not applicable to the appellant. As the notification was issued after the date of import, it was deemed not applicable to the case.

Issue 3: Freely importable status of gold before Notification dated 18/12/2019
The Tribunal referenced a previous case and noted that prior to the Notification dated 18/12/2019, gold was freely importable by Normal importers as per RBI Guidelines. Based on this analysis, it was concluded that the gold was freely importable by Normal importers before the issuance of the Notification dated 18/12/2019. Therefore, the restrictions contained in Notification No. 34/2017 dated 18/10/2017 were deemed not applicable to the appellant, as the import was completed before the introduction of the notification.

In conclusion, the impugned order was set aside, and the appeal was allowed with consequential relief, if any.