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TMI Blog2021 (1) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... ed combining the relevant provision in the Act, notification and facts prevailing on the date of consideration etc. The authorities are guided by the information available to them in a given case. The consideration of Appellate Tribunal in the case on hand is illegal, ignored relevant notifications, the mandate of FTDR Act and Customs Act 1962. The adjudications of a dispute in these matters is neither on the pedestal of travesty of justice or we have so much discretion for doing proverbial justice to an importer. In matters of this nature, such approach would go contrary to the object sought to be implemented by the authorities, in whom power is conferred particularly in matters of import, export, price etc. In our considered view, the other question whether it is restricted, prohibited the decisions rendered under customs under import and export etc., need not be considered. By juxtaposing the order of Commissioner of Customs and the order under appeal we are fully convinced that the Appellate Tribunal committed serious error in law by ordering release of goods under Section 125 - question is answered in favour of Revenue and against the Importer. Penalty - HELD THAT:- Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1992 referred to as FTDR Act issued Notification No.37/2015-2020 dated 18.12.2019. The said notification is followed by Notification No.1225(E) dated 28.3.2020. The notifications have bearing on the submissions made by the counsel appearing for the parties and we find it useful to excerpt the respective notifications hereunder: Government of India Ministry of Commerce Industry Department of Commerce Directorate General of Foreign Trade Notification No.37/2015-2020 New Delhi, dated: 18th December, 2019 Subject: Amendment in import policy and Policy condition under HS code 0713 1000 of Chapter 7 of ITC (HS), 2017, Schedule-I (Import Policy). S.O.(E): In exercise of powers conferred by Section 3 of FT (D R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central Government hereby amends import policy and policy conditions under HS code 0713 1000 of Chapter 7 of ITC (HS), 2017, Schedule- (Import Policy), as under: Exim Code Item Description Existing import policy Revised policy Existing Policy Condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2020-2021 0713 10 10 Yellow Peas Restricted 1.5 lakh MT (the quantity of each category of peas will be notified shortly) 0713 10 20 Green Peas Restricted 0713 10 90 Other Restricted 0713 31 90 Moong (Beans of the SPP Vigna Radiata (L) Wilezek). Restricted 1.5 lakh MT 0713 60 00 Tur/Pigeon peas (Cajanus Cajan) Restricted 4 lakh MT 2. The import policy conditions such as Minimum import price (MIP) of ₹ 200/- and port restriction through Kolkata sea port only for all peas (07131010, 07131020 07131090) as notified vide Notification No.37, dated 18th December, 2019 remain unchanged. 3. The above quota restriction will not apply to Government's import commitments under any bilateral/regional Agreement/Memorandum of Understanding. 4. This notification shall come into force form the date of its publication in the official Gazette. The above ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be dealt with under the Customs Act 1962. The subject import is not one of the instances covered by the judgment of Supreme Court in Agricas LLP. The Ministry of Commerce Industries Department, Government of India issued notification dt.16.4.2020 specifying the quantity of import for each category of peas for fiscal year 2020-2021 which reads thus: MINISTRY OF COMMERCE AND INDUSTRY (Department of Commerce) NOTIFICATION New Delhi, the 16th April, 2020 S.O.1260(E).-In exercise of powers conferred by Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, the central Government, in pursuance to the Notification S.O. 1225(E) dated 28th March, 2020, hereby notifies the quantity of each category of peas, for fiscal year 2020-2021, as under: Exim Code Item Description Quota (in MTs) 0713 10 10 Yellow Peas o(zero) 0713 10 20 Green Peas 75000 0713 10 90 Other 7500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove CIF per kg.; And III) Import is allowed through Calcutta Seaport only. The Commissioner of Customs takes note of the affidavit dt.20.6.2020 filed by the Union of India before the Supreme Court in Transfer Petition No.496-509 of 2020 and reasons for restriction on quantity, minimum import price and also entry port only as Calcutta Port; orders confiscation of subject goods and imposes penalty on importer. The operative portion of the order reads thus: Under Section 125 of the Customs Act, 1962, releasing prohibited goods in lieu of fine is not obligatory and the stand of the Union Government before the Hon'ble Supreme Court cannot be ignored by this adjudicating authority. More so, when the supply of the peas and pulses in the domestic market would have an adverse impart on the economy and would defeat the purposes of the restrictions imposed. Therefore, I hold that peas imported against the policy restrictions are liable to penalty and confiscation. ORDER 1. I order absolute confiscation of the goods covered under the Bill of Entry No.7978930 dated 23.0.6.2020 for contravention of the provisions of Section 111(d) of the customs Act, 1962, read with Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 was rejected by the Apex Court. The DGFT and the Union of India being conscious of various factors concerning Pulses for import need necessity of protecting farmer's interest and subsisting stock, protection of price under FTDR Act from time to time. There is no fresh challenge to the Notification dated 18.12.2019 and 28.03.2020 by any stake holder. The Customs Commissioner, therefore, has rightly considered the circumstances leading to the judgment in Agricas LLP case(supra), the findings recorded therein and has taken comprehensive view ordering confiscation of subject goods. He argues that exercise of discretion by the Commissioner in any other manner would defeat the Exim Policy, Notification in vogue, the judgment of the Apex Court in Agricas case and would adversely affect the interest of farmers in the Country. It is also argued that the Tribunal, by ordering release of goods on payment of redemption fine has opened the floodgates and also opened a window for release of goods without complying with any of the conditions applicable for import of subject goods. According to him, these conditions operate in any matter concerning release of goods restriction on quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter disregarding every condition on its own volition, imports the goods and by giving a very liberal approach, the release of goods is ordered by the Tribunal. As a matter of fact, it is stated that the competent authority, in response to the trade notice dated 21.04.2020, has not issued licence to any of the applicants. There is no discrimination in granting Licences to the applicants for import of green peas etc. and an informed decision is taken by the authority not to operate or grant licences in the restricted quantity of 1.5 lakh MT by keeping in perspective the available stocks in the country. He submits that these matters do not fall within the ambit of judicial review, much less, for the Appellate Tribunal to completely ignore relevant considerations and direct release of goods. The DGFT restricted import of subject goods. A restriction should be read as something which requires compliance of certain conditions and import in breach of such conditions could not be treated as restricted import but considered as prohibited import. The importer being an actual user for industrial purpose, is aware of the notifications issued by DGFT from time to time. The importer cannot clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation and the import is prohibited by law, still the adjudicating authority may allow redemption of the goods on payment of redemption fine. The distinction is that goods other than prohibited by law, if found liable for confiscation, it is mandatory to release goods. The Customs Act does not define restricted goods. The view of Apex Court in Atul Automation Pvt.Ltd (supra) is that option at the discretion of revenue is to redeem the goods and mandatory. Therefore, the Appellate Tribunal has given effect to the law declared by Apex Court in Atul Automation Pvt.Ltd. (supra). The judgment of Apex Court in Agricas LLP was concerned with the notification issued by DGFT restricting import of pulses etc. But the said decision cannot be treated as in any way declaring that import of such goods is prohibited and liable for absolute confiscation under Section 125 of Customs Act 1962. The reliance placed by the Revenue on Agricas LLP (supra) is only to prejudice the mind of the court on the difficulties allegedly placed by farmers. The subject goods even if fall under the category of prohibited goods the reasoning of Tribunals in paras 12 to 18 of judgment under appeal notices the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for granting import licence. The goods are imported and Bill of Entry is filed for customs clearance. 17. This Court for the purpose of appreciating the case of importer must keep in perspective the judgment of Apex Court in Agricas LLP case. The judgment of Apex Court in Agricas LLP case considered the grounds raised against Notifications impugned therein, rejected the prayer. The following paras need to be excerpted hereunder : The effect of Notifications, as noticed and beyond doubt, is to bring the specified commodities from free to the restricted category and therefore the imports in question would require a prior authorisation for import. The requirement of licence is nothing but authorisation. Therefore, in terms of paragraph 2.10, the imports of the specified commodities would only be by the 'actual user' unless the 'actual user' condition was specifically dispensed with or diluted by the DGFT. The Directorate by specifying that the licence would be issued to the miller or refiner has, therefore, just clarified that the 'actual user' alone will be permitted to import the restricted goods mentioned int he notification for which a prior auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of the Transfer Petitions, subject to E above (What is not decided) are dismissed. Writ Petitions filed by the intervenors before the respective High Courts shall stand dismissed in terms of this decision. Pending application(s), if any, also stand disposed of in the above terms. No order as to costs. 18. Thereafter notifications dated 18.12.2019 and 28.3.2020 stipulating further policy conditions were issued by the Government. As a sequel for operating policy, trade notice was issued on 21.4.2020, calling for application for grant of import licence. The importer on 22.4.2020 applied for licence, It filed the bill of entry on 30.6.2017 before Customs, Cochin Port. The importer claims release of goods on payment of redemption fine notwithstanding restriction/prohibition on import of goods. This Court before proceeding to consider the manner of exercise of discretion in different perspectives by the primary authority and the Tribunal, finds it useful to refer to a few judgments relied on by the revenue. 19. In S.B. International Limited case, it is held that grant of licence is neither a mechanical exercise nor a mere formality. The authorities, while discharging the fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, as already noted, appreciating Exim Policy notification dated 18.12.2019 and 28.3.2020, noted that the subject goods have acquired the nature of prohibited goods in terms of Section 2(33) of Customs Act, 1962. However in paragraph 18 of the judgment under appeal treated the subject goods in the nature of restricted goods and held that release can be allowed on payment of redemption fine in lieu of confiscation. In the considered view of this Court the Appellate Tribunal is not consistent in appreciating whether the subject goods should be treated as restricted goods or prohibited goods. Still the Tribunal proceeded to direct release of goods on payment of redemption fine. Be that as it may, the Appellate Tribunal as one of the supporting reasons relies on the judgment of the Bombay High Court in M/s. Harihar Collections case and recorded that denial of release to subject importer would be travesty of justice. With respect, after appreciating the circumstances leading to the filing of the writ petition before the Bombay High Court and issues considered and particularly, what is observed in paragraph-36 of the said judgment, we are of the considered view that Harihar Collections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 is read with the provisions of FTDR Act, 1992, foreign trade policy and the notifications issued by the Government from time to time. The Supreme Court in Agricas LLP has upheld notification dated 29.3.2019 issued imposing restriction on import of pulses described therein. The notifications dated 18.12.2019 and 28.03.2020 which have bearing to the issue on hand are substantially same and similar, but operating for subsequent fiscal years with a few additional parameters. The combined exercise of authority and discretion by Customs Commissioner etc. in these matters, conform to the requirements of judicial discretion. The discretion or power is exercised combining the relevant provision in the Act, notification and facts prevailing on the date of consideration etc. The authorities are guided by the information available to them in a given case. 25. We hasten to add, that if in every case goods are released on payment of redemption fine, by the primary or appellate Tribunal, then such decisions are unsustainable in law and judicial review. In our considered view, exercise of power and discretion under Section 125 of Customs Act 1962, are specific and generally governed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the object sought to be implemented by the authorities, in whom power is conferred particularly in matters of import, export, price etc. In our considered view, the other question whether it is restricted, prohibited the decisions rendered under customs under import and export etc., need not be considered. By juxtaposing the order of Commissioner of Customs and the order under appeal we are fully convinced that the Appellate Tribunal committed serious error in law by ordering release of goods under Section 125. We answer the first question in favour of Revenue and against the Importer. Question:2 26. The importer, as noted by the Commissioner of Customs is familiar with the practices and procedures for import and export of goods. The chronological events in the matter are already noted in the preceding paragraph. The importer in the case on hand files an application for trade licence on 22.04.2020. Bill of lading is dated 27.04.2020. Bill of entry is filed on 23.06.2020. The importer used its volition and choices for importing the subject goods. It is not the argument of importer that for contravention in any import the authorities does not power to levy the penalty. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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