9911796707
TMI Blog2011 (10) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... d Customs duty of Rs.1,07,41,818/- in respect of raw silk imported by the appellants by availing the exemption in terms of Notification No. 38/96 Cus dated 23.7.96. In addition, the imported goods stands confiscated with an option to redeem the same on payment of redemption fine. Penalty of identical amount stands imposed on the importer in terms of Notification No. 114A of the Customs Act, 1962. In addition, penalty of Rs.5 lakhs stand imposed on Shri Inder Prasad Negi, in terms of Section 112 of the Customs Act, 1962. 2. As per the allegations of the Revenue, M/s. Krishna Impex International, the proprietary firm of Shri Amarnath Jhujnjhuwala imported raw silk from China by using the name of one M/s. Dongch International, a proprietary firm of Shri Inder Prasad Negi. According to the Revenue, the import of Chinese raw silk could be made only by the persons residing along the border and the exemption notification No. 38/96-Cus dated 23.7.96 was available only to the local persons residing along with the border area. As such, revenue entertained a view that M/s. Krishna Impex International has wrongly availed the benefit of the exemption in question by showing import under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ize that CBEC instructions are binding on the department and any action taken in defiance to the said instructions are bad in law." 5. As is seen from the above, the main and basic ground for the revenue is that the Memo of Understanding entered into between India and China for extension of border trade across Shipkila- Namgaya pass, signed on 7.9.93, is indicative of the fact that same was to promote the trade between the two countries along the border and such goods are not further diverted or disposed of. 6. We find that identical issue was considered by us in case of Krishna Singh Garbyal (Appeal No. C/26-28/ 2008) vide Final Order No. C 323-325/11 dated 14.7.11, it was held as under: 16. Having observed that there is no such condition in the notification, which stands allegedly contravened by the importer and this fact having been accepted by the Revenue also, we proceed to deal with the objections which have been made the basis for denial of the benefits of notification by the adjudicating authority. The MoU entered into by the two countries is an international obligation and has to be converted into domestic law to operationalize the same., The said MoU is required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Commerce OM No. 2/9/2005-FT(NEA) dated 02/5/2005 and Department of Revenue's letter F.No. 554/02.5005-LC dated 12.08.2005, can at the most reflect upon the intention of the Government but cannot take the place of legislative enactment so as to have the force of law. There being no such condition in the notification itself, the view as expressed in the letters cannot take the place of such conditions so as to require the importers to adhere to the same. In the case of Intercontinental vs. UOI - 2003 (154) ELT 37, it was observed that if the notification has not provided for any condition, subsequent circular cannot impose such condition as the same would tantamount to re-writing the notification or in other words legislation - by circular, which is not permissible in law. Admittedly a notification issued under the provisions of a particular ;pct require publication in the official gazette as well as requires tabling before both the houses of the Parliament and if that exercise has been carried out without condition being imposed in the notification, it would not be permissible to permit Revenue to impose such conditions by way a circular. The letters of Ministry of Finance a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be requested to issue statutory clarification/ public notices to give strength to the argument that the subject import was not allowed under the MoU so that Notification No 38/96-Cus dated 23.7.1996 is not misused by the importer. Another letter dated 01.09.2005 issued by the Ministry of Commerce is to the effect that in view of the hardships being faced by the importers at Gunji, duty free import of silk through land route from China, should not be discouraged. All these correspondences reflects upon one fact that though the Government's intention in allowing border trade were clear but the same were not incorporated in the notification in question. The Commissioner, Lucknow expressed his apprehensions about the same and also requested the Government to introduce such condition in the notification itself and that having not been done, reliance on such internal correspondence by the adjudicating authority to hold against the appellant, is not appropriate. 19.1At this stage we may refer to Advance Ruling dated 29.08.2006 given in the case of one Shri Akash Jain. It stands held in the said ruling, while dealing with the scope of notification No. 38/96-Cus dated 23.7.1996, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly support the appellant's contention. In fact, we note that the Hon'ble High Court of Uttaranchal, in their interim order dated 18.11.2005 passed on the writ petition filed by M/s. Krishna Enterprises, observed that there is no stipulation in the said notification that exemption from excise duty can be claimed only by the traders/ tribals living in the border area, and as such, prima facie there was no justification for the seizure of the goods. Though we agree that these observations were made by the Hon'ble High Court while passing an interim order for release of the seized goods, but such observations support the view which we have already arrived at. As such, we find no reasons to deny the exemption notification in question irrespective, of the fact whether M/s. Krishna Enterprises is the actual importer or imports stands financed by M/s. M/s. Elegant Industries." 7. The ratio of law as declared in the above decision is clearly applicable to the facts of the present case with the only difference that the raw silk was imported in that case through Gunji Route whereas in the present case the importation is from shipkila pass. Undisputedly, both the routes are specified ro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
