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TMI Blog2020 (9) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... thdrawn by the Norms Committee in 2013. The foundation of the impugned order is the attribution of retrospective effect to the subsequent withdrawal so as to render the impugned imports to be contrary to the list appended to the licence. With the description in the norms continuing to remain unamended, the deemed insertion of the specific description, embodied in the advisory of 2013, may not find ready acceptance. The adjudicating authority has appeared to stretch the proposition for retrospective application of withdrawal of clarification on the basis of cited decisions which, as we have pointed out, were made in an entirely different context. Furthermore, to permit any individual acting on deliberated decisions of an authorized body to be subject to any detriment subsequently is tantamount to incentivizing the irresponsible decision-making by designated authorities. Indubitably, passage of time and hindsight tend to promote wisdom and the perception of errors of the past, in the light of such wisdom, does not erase an assurance offered. If the test of validity for retrospective effect of notifications, it surely must be no less applicable to clarifications. Imports, if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the applicability of duties in the event of ineligibility for exemption. 2. We have heard the rival submissions on behalf of the appellants and on behalf of Revenue. Before proceeding to consider the principal grounds espoused by Learned Counsel, viz., that none of the pre-requisites in section 28 of Customs Act, 1962 for invoking the extended period are in evidence and that the policy prescriptions alleged, in the notice leading to the impugned proceedings, to have been breachedwere not in existence at the time of import, it would be worthwhile for us to recount the facts pertinent to the dispute, the framework of the scheme in the context of the imports effected by the appellant-assessee and the finding on which the adjudicating authority confirmed the demand of duty and penalties proposed in the show cause notice dated 18th November 2015. 3. The appellant-assessee imported consignments of float glass and ultra float glass sourced from Saudi Arabia and China, seeking exemption from duties of customs, including anti-dumping duty, otherwise leviable, on the two shipments from China by recourse to notification no. 40/2006-Cus dated 1st May 2006. To qualify for the exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Leather Research Institute (CLRI). Further developments on any changes having been affected thereafter is not on record but it has been clarified by Learned Counsel that subsequent licences were being issued only with specific description of the eligible item of import. 5. It is in this context that the impugned order finds that float glass was not amenable to use in the manufacture of finished leather from hide of cow/buffalo , that the intent of the policy had been violated as the flexibility of importing alternative inputs, allowed in circular dated 24th March 2009, did not extend to goods that were not capable of being used in the industry, and that clarification dated 14th February 2002 on use of float glass as glazing glass stood withdrawn by the advisory of 15th January 2013. Placing these findings in sequence, it was held by the adjudicating authority that the clarification dated 15th January 2013 was intended to cover all imports effected before such date as 29.... it was issued to explain explicitly what was scientific, factual, technical and not a legal or interpretative issue. This is borne by a Catena of Judgement of Honourable Supreme Court where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive effect to the subsequent withdrawal so as to render the impugned imports to be contrary to the list appended to the licence. With the description in the norms continuing to remain unamended, the deemed insertion of the specific description, embodied in the advisory of 2013, may not find ready acceptance. The adjudicating authority has placed reliance on cited decisions to sustain such retrospectivity. In Government of India Ors v. Indian Tobacco Association [order dated 23rd August 2005 in civil appeal no. 5196/2005], the issue before the Hon ble Supreme Court was the legality of the claim for 2% incentive under a scheme in the Foreign Trade Policy to be applicable to exports effected through Inland Container Depot, Guntur from 1st April 1997 even though the said location was incorporated in the relevant notification only on 27th November 1997 and the claim for retrospective effect and retroactive operation was allowed as the intention of the Central Government to rectify the mistake was evident in the absence of explicit stipulation to the contrary and the availability of the exception under an alternative provision in the original notification. In re Aspi Rustomji Balsara, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision to the case of Revenue is not immediately apparent. In re Candid Enterprises, the Hon ble Supreme Court took objection to the Tribunal having rejected the application for condonation of delay in filing of appeal by Revenue without taking into consideration the doubts cast upon some of the documents that prompted the first appellate authority therein to set aside the order of the original authority. We have noted supra that, in the impugned order, it is the retrospective applicability of withdrawal of clarification, and not the original clarification itself, that was decided upon; the cited decision does not find the relevance. In re Aafloat Textiles (I) P Ltd, the licences had been established as bogus and that the responsible individuals were cognizant of it; in the present dispute the licences themselves have not been tainted. 9. Learned Counsel cited the decision of the Hon ble Supreme Court in Northern Plastic Ltd v. Collector of Customs Central Excise [1998 (101) ELT 549 (SC)] and on the decision of the Hon ble High Court of Bombay in Commissioner of Customs v. Gaurav Enterprises [2006 (193) ELT 532 (Bom)], which placed reliance on the former, to challenge the recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of benefits, notwithstanding the lessening of benefit permissible thereafter, to the investors who had been motivated by the scheme as it originally stood, discarded the plea observing that 12. 14.1... At the time when the earlier notifications were issued, the Government did not visualise that such a modus operandi would be followed by the unscrupulous manufacturers indulging different types of tax evasion tactics. It is only by experience and on analysis of cases detected the Excise Department the Government came to know about such tax evasion tactics being followed by the unscrupulous manufacturers which prompted the Government to come out with the subsequent notifications .which cannot be said to be bad in law, arbitrary and/or hit by the doctrine of promissory estoppel. but, nevertheless, held that such ring fencing would stand as 14.... It cannot be said that by the subsequent notifications/industrial policies the benefits which were accrued/granted under the earlier notifications were sought to be taken away. It also cannot be said that by the subsequent notifications/industrial policies, the rights which have been accrued under the earlier notifications had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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