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TMI Blog2020 (10) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... under the order the import or export of goods or services of technology, by an order published in the official gazette - from perusal of the provisions of Foreign Trade (Development and Regulation) Act, 1992 and the Foreign Trade Policy, it is evident that amendments to the Foreign Trade Policy can be made by the Central Government under Section 5 of the Act or by DGFT by issuing a Notification under para 2.07 of the Foreign Trade Policy. The change in categorization from free to restricted can be made in respect of import of goods, only by an amendment and the same cannot be done by DGFT by issuing a Circular. In the instant case, admittedly, the gold medallions and gold granules were imported on 03.07.2017. Thereafter the DGFT by Notification dated 25.08.2017 has restricted the import of gold from South Korea - thus on the date, the gold medallions were imported i.e., 03.07.2017 there was no restriction and the restriction was imposed by the Central Government vide Notification dated 25.08.2017. In other words, there was no restriction with regard to import of gold medallion on the date the same was imported by the respondent - Similarly, the gold granules were imported on 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a nominated bank nor a nominated agency as specified by Directorate General of Foreign Trade (DGFT) or in possession of status of star and premium trading houses and therefore, is not permitted to import the gold and the gold in question has been imported in contravention of the import policy envisaged by DGFT based on regulations promulgated by Reserve Bank of India. Therefore, the respondent was asked to show cause as to why an action to confiscate the goods in question be not taken under Section 111 of the Act and penalty under Section 112 of the Act be not imposed on it. The respondent in its replies submitted that it is an ordinary importer and as per the prevalent foreign trade policy, all the goods were freely importable without any prohibition. The Additional Commissioner of Customs by orders dated 28.03.2018 and 27.04.2018 inter alia held that respondent is neither a nominated agency, nominated bank nor a holder of star or premium trading house and is not covered under any of the categories of specified agencies permitted to import the gold medallions and gold granules and therefore, the goods are imported in violation of para 4.41 of Foreign Trade Policy 2015-2020 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and amendments to be followed by an exporter or importer or by any licensing / regional authority or by any other authority for the purposes of implementing the provision for Foreign Trade (Development and Regulation) Act, 1992. It is also submitted that the correct classification of the goods is under CTH 7118900 and therefore, the import of gold is restricted and is subject to regulations framed by Reserve Bank of India. It is also urged that intention of the legislature is not permit import of gold except by a nominated agency. It is also contended that the tribunal erred in holding that Reserve Bank of India has no role or power to control the import of the gold. In this connection, reference has been made to Section 17(11) and Section 40 of the Reserve Bank of India Act, 1934. It is also pointed out that Reserve Bank of India is the agency of Central Government. It is also argued that finding recorded by the tribunal that Reserve Bank of India is changing the policy is perverse and customs tariff classification are found in classification No.7114900. Our attention has also been invited to paragraph 4 of Notification dated 06.09.2017 issued by Ministry of Commerce and Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, if any, as may be made by or under the order the import or export of goods or services of technology, by an order published in the official gazette. Section 3(4) of the Act provides that without prejudice to contained in any other law, rules, regulation, notification or order, no permit or licence shall be necessary for import or export of goods nor any goods shall be prohibited for import or export except, as may be required under this Act, or Rules, or orders made thereunder. Section 5 of the Act provides that Central Government may from time to time formulate and announce by notification in the official gazette, the Foreign Trade Policy and may also amend the same. Thus, the Foreign Trade Policy which has been issued by the Central Government in exercise of powers under Section 5 of the Act has the statutory force. 7. Para 2.01 of the Policy provides that exports and imports shall be free except when regulated by way of prohibition, restriction, or exclusive trading through State Trading Enterprises has laid down in Indian Trade Classification (harmonized system) of exports and imports. Para 2.017 empowers the DGFT to impose restrictions on export and import through a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the DGFT. Thus, it is evident that on the date when the gold granules were imported i.e., on 21.09.2017, there was no restriction on its import and the restriction was imposed subsequently on 18.12.2019 by the DGFT by way of Notification. Thus, when gold medallions and gold granules were imported, they were freely importable and the same was brought under the restricted category subsequently. 11. It is not the case of the respondent that it is a nominated agency. It is pertinent to mention here that the Circulars issued by the Reserve Bank of India apply where the gold is imported by nominated banks as notified by Reserve Bank of India and nominated agencies as notified by DGFT. The gold medallions as well as the gold granules fall under CTH 71141910 and 710811300 respectively. It is pertinent to mention here that the Circulars issued by the Reserve Bank of India apply in case the Banks nominated by it import the gold. At this stage, it is pertinent to refer to the relevant extract of communication dated 18.06.2019 sent by State Bank of India to the office of Principal Commissioner of Customs, regarding regulations of Reserve Bank of India for import of gold policy, which r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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