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TMI Blog2021 (6) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... is own understanding of the policy notification. What the respondent has done is not in accordance with Section 17 of the Customs Act - However, vide notification No.45/2015-2020 dated 31.01.2020, the Director General of Foreign Trade prohibited import of stock lot . Issue arose as to what was meant by this expression. Thereafter, clarification was provided by DGFT vide Trade Notice No.8/2020-2021, dated 04.05.2020 - The Trade Notice has clarified that If the whole imported paper consignment is without description for each category of paper, it is a stock lot. The respondent should have adopted a similar approach in this case - He could have contacted the other port authorities and ascertained the position - He could have moved the competent authority in DGFT and obtained clarification. Without doing so, he chose to straightaway pass the impugned order. This is clearly unfair as well as violation of Section 17 of the Customs Act. Principles of Natural Justice - HELD THAT:- The impugned order is also violative of the principles of natural justice. The order of confiscation has been passed without issuing show cause notice - It is true that the petitioner has called upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal was served on the petitioner's customs broker as early as on 16.08.2018. Since the petitioner failed to avail the alternative remedy of appeal and the limitation period had also expired, the present writ petition is not maintainable. The stand taken in the impugned order has been reiterated in the counter. 4 .The petitioner has filed a rejoinder in response to the counter along with a typed set of papers. 5 .The foremost contention raised by the learned standing counsel is that the present writ petition will have to be dismissed in view of the decision of the Supreme Court reported in 2020 (36) GSTL 305 (ACCT, LTU, Kakinada vs. Glaxo Smith Kline Consumer Health Care Ltd., ). In the said decision, the Supreme Court had specifically overruled the decisions of the various High Courts which had held that even if the period for filing statutory appeal has expired, the order-in-original passed by the assessing authority can be challenged in writ petition. 6 .Per contra, the learned counsel appearing for the petitioner brought to my notice a host of other decisions pronounced by larger Benches of the Supreme Court to the effect that the jurisdiction under Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2018 addressed to the respondent had taken the stand that the goods in question are used as basic raw material by the Industries for their finished products. The manner in which the goods are being used by the manufacturer had also been indicated. More than anything else, he had pointedly contended that there is no policy violation. If the respondents were to still insist that the goods in question are restricted items, then, the onus is on the respondent to get the issue clarified from DGFT. The Customs Act, 1962 is not a standalone legislation. The customs authority is basically an implementing agency. To find out whether the goods can be freely imported or not and whether they are prohibited or restricted, one has to go by the orders issued under the Foreign Trade (Development and Regulation) Act, 1992. Section 3 of the said Act reads as follows : 3.Powers to make provisions relating to imports and exports.-(1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2)The Central Government may also, by Order published in the Official Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter, exporter or such other person shall produce such document or furnish such information. (4)Where it is found on verification, examination or testing of the goods or otherwise that the self- assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, reassess the duty leviable on such goods. (5)Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re- assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. 6........ 10 .The question that arises for my consideration is how this verification exercise ought to have been carried out in the case on hand. The petitioner's contention is that the goods are freely importable. The stand of the customs authority is that they are restricted items. The issue turns on an interpretation of the policy notification issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that in the facts and circumstances of this case the procedure laid down in Section 124 of the Customs Act, 1962 ought to have been followed. Section 124 of the Customs Act reads as under : Issue of show cause notice before confiscation of goods, etc.- No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person- (a)is given a notice in writing with the prior approval of the officer of Customs not below the rank of an Assistant Commissioner of Customs, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b)is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c)is given a reasonable opportunity of being heard in the matter: Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be oral. Provided further that notwithstanding issue of notice under this section, the proper offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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