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TMI Blog2019 (8) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed confiscating the goods and imposition of penalty. The entire procedure followed by the original authority appears to be in gross violation of the principle of natural justice. The appellant is covered by the transitional provisions as contained in Foreign Trade Policy. In this case, the appellant made advance payment on 29/10/2018 and 13/11/2018 as evident from the documents produced on record and imported the goods prior to 18/12/2018 which is the date up to which the goods could be imported without insisting on BIS certificate. Both the authorities have completely ignored the saving clause of the Transition Policy and misinterpreted the exclusion clause in the transitional provisions as provided in the FTP 2015-2010. The impugned order is totally illegal and has been passed arbitrarily without following the basic principles of natural justice and on merit also, the appellant is covered by the transition provision as covered under FTP - the original authority directed to immediately release the goods on payment of appropriate duty - appeal allowed - decided in favor of appellant. - C/20713/2019-SM - Final Order No. 20654/2019 - Dated:- 19-8-2019 - SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etained by the respondent on the ground that one of the item in the said container required BIS certificate. He further submitted that as evident from Para 9 of the Order-in-Original, personal hearing was conducted on 25/02/2019 and since then the appellant had repeatedly submitted that the goods imported by the appellant is not falling under the category of goods which required BIS. Appellant had also submitted the details regarding exemption of the goods on transitional arrangements of FTP. But when there was undue delay in responding to the request even for clearance of remaining goods which did not require BIS certificate, the appellant was compelled to file a Writ Petition before the Hon ble High Court and only during the pendency of the said Writ Petition, remaining goods were released. He further submitted that in spite of the specific direction from the Hon ble High Court, respondent failed to conclude the proceedings within the time stipulated by the High Court. Thereupon the appellant was forced to initiate contempt of court proceedings and to cover up the lapse in complying with the order of the High Court, the impugned order was passed and the goods were confiscated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct impact on the rights or legitimate expectations of the individuals concerned, an implied obligation to observe the principles of natural justice arises. One of the shades of the rules of natural justice is a right to fair hearing. The right to fair hearing required that an individual shall not be penalised by a decision affecting his rights or legitimate expectations; unless he has been given prior notice of the case against him and a fair opportunity to answer the same and to present his own view point. 44. Right to fair hearing involve prior notice of hearing; opportunity to be heard together with right to legal representation. Generally, when an oral hearing is conducted, the parties must be allowed to call witnesses, make submissions and cross-examine the witnesses called by others. Where an oral hearing is necessary, it has been laid down in number of reported judgments that the Tribunal must : (a) consider all relevant evidence which a party wishes to submit; (b) inform every party of all the evidence to be taken into account, whether derived from another party or independently; (c) allow witnesses to be questioned; and (d) allow to comment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andards covering 2 MTs of GI wire under Bill of Entry No.9598155 dt. 10/01/2019, GI Wire of 25 MT under Bill of Entry No.9559481 dt. 08/01/2019 is of 0.7 mm and said size is not included in IS 280:2006. He further submitted that even if it is assumed that the goods imported by the appellant required BIS certificate, the adjudicating authority and the appellant authority failed to appreciate that the date of implementing the notification issued vide S.O. 3966(E) dt. 13/08/2018 is 18/12/2018. Further as per Chapter 1A of the Hand Book of Procedures introduced in 2017-18 as part of Foreign Trade Policy 2015-2010 w.e.f. 05/12/2017, specific provision is made to meet transitional arrangements wherein 1.05 it is stated that in case an export or import that is permitted freely under FTP is subsequently subject to any restriction or regulation, such export or import will ordinarily be permitted, not withstanding such restriction or regulation, unless or otherwise stipulated. This is subject to the condition that the shipment of export or import is made within the original validity period of an irrevocable commercial letter or credit, established before the date of imposition of such restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file a Writ Petition before the Hon ble High Court and during the pendency of the case before High Court, some of the goods where no BIS was required were released, that too after the expiry of around 3 months from the date of filing the Bill of Entry. Further, the Hon ble High Court directed the respondent to pass order regarding the classification within 3 weeks from 10/04/2019 but the original authority did not bother about the order passed by the Hon ble High Court and issued the show-cause notice only on 28/05/2019 when the appellant filed a contempt proceedings before the Hon ble High Court and in order to save himself from the contempt proceedings, the original authority without following the principles of natural justice, passed the original order. Further I find that in the matter of Kellogg India Pvt. Ltd. cited supra by the appellant, the Hon ble Bombay High Court has categorically held that rules of natural justice are the minimum standards of fair decision making imposed on persons or bodies acting in a judicial or quasi-judicial capacity. But in the present case, I find that without following the law on the point, the original authority has passed the order in compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontempt of court, the adjudicating authority hurriedly issued the show-cause notice dt. 28/05/2019 and served the same at 5 PM on the same day and directed the appellant to file reply to the show-cause notice by 10 to 12AM on the next day i.e. 29/05/2019. It is pertinent to note that no relied upon documents were supplied to the appellant along with show-cause notice and when the appellant vide letter dt.29/05/2019 requested for a week time to file reply, the adjudicating authority without considering the request of the appellant and without affording an opportunity of hearing absolutely confiscated the goods and also imposed a penalty of ₹ 1,50,000/- under Section 112(a) of the Customs Act, 1962 on the appellant. Heaven was not going to fall had the adjudicating authority given one week time to file reply by the appellant. The conduct of the adjudicating authority from the very beginning appears to be totally biased and to harm the interest of the importer who appears to be small time importer and the size of the imported consignments is also not very big. The insensitive approach of the adjudicating authority is going to damage the policy of the Government of India relating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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