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TMI Blog2022 (11) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... cision are of much relevance to the case on hand. However, as observed earlier, they could not be placed before the Tribunal because these decisions were rendered much after the order was passed by the Tribunal. The matter should be re-heard by the Tribunal and a fresh decision should be taken on merits after taking note of the legal position - Appeal allowed by way of remand. - CUSTA/31/2018 - - - Dated:- 4-11-2022 - HON BLE JUSTICE T.S. SIVAGNANAM AND HON BLE JUSTICE HIRANMAY BHATTACHARYYA Appearance : Mr. Bhaskar Prosad Banerjee, Adv. Ms. Aishwarya Rajyashree, Adv. for appellant None for the Respondent The Court : This appeal by the revenue filed under Section 130 of the Customs Act, 1962 (the Act, for brevity) is directed against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata (the Tribunal) dated 28th November, 2017. The appeal was admitted on 11th March, 2022 on the following substantial questions of law :- i) Whether the order of the Learned Tribunal is against the provisions of law and a nullity in the eye of law since the said order failed to consider the provisions of the Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of prohibited goods. Consequently, the order of confiscation was set aside along with the order for payment of redemption fine and penalty. As rightly pointed out by the learned standing counsel for the revenue, the law on the subject as settled by this Court and subsequently by the Hon ble Supreme Court could not be placed before the Tribunal for its consideration, the first of the decisions being the Hon ble Division Bench of this Court in the case of Union of India vs. Navin Kr. Jha, 2016 (341) E.L.T. 561 (Cal.). An identical issue arose for consideration in the said case where the intra-court appeal by the Union of India was against an order passed in a batch of writ petitions whereby the notification dated 13th May, 2013 imposing price restrictions by exercising the powers under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 was set aside. The said order was reversed by the Hon ble Division Bench and while doing so has held as follows: 5. We are unable to agree with the learned Trial Court that no such exercise was permissible. The Foreign Trade (Development and Regulation) Act, 1992 is an Act both for the purpose for development and reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the remand to the authority was only with regard to other aspects other than the validity of the Customs notification which had attained finality. The decision of the Hon ble Supreme Court in the case of Union of India and Others vs. AGRICAS LLP and Others, 2020 SCC Online SC 675 is also of relevance. While considering the effect of the notification issued under the FTDR Act, the Hon ble Supreme Court pointed out as follows : 65. The provisions of FTDR Act, therefore, are in addition to, and not in derogation of, the provisions of any other law for the time being in force. This would be the correct way to harmoniously read and interpret subsection (4) to Section 3 and Section 18A of the FTDR Act. We may, at this stage, notice that the original amendment had used the phrase notwithstanding anything contained in any other law, rule regulation, notification or order , but the Standing Committee had noticed the contradiction and also the object and purpose behind enacting sub-rule (4) and had recommended that the said expression should be replaced with the expression without prejudice to anything contained in any other law, rule, regulation, notification or order . Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrictions after following the procedure in the situations referred to therein. However it does not limit and restrict the expans and power of the Central Government to prohibit, regulate or restrict imports of goods in terms of Section 3(2) of the FTDR Act. As a sequitur, it has to be held that notwithstanding Section 9A, the Central Government continues and has authority to impose quantitative restrictions by an order under Section 3(2) of the FTDR Act. Principle of Lex specialis derogat legi generali, therefore, is not applicable to the case in hand. 74. In other words, the impugned notifications would be valid as they have been issued in accordance with the power conferred in the Central Government in terms of sub-section (2) to Section 3 of the FTDR Act. The powers of the Central Government by an order imposing restriction on imports under sub-section (2) to Section 3 is, therefore, not entirely curtailed by Section 9A of the FTDR Act. 75. To be fair, learned counsel appearing for the importers had conceded that they cannot enforce or claim violation of paragraph (1) of Article XI of GATT-1994 in the domestic courts in India unless the said Article has been expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is required to say that, if excessive improperly imported peas/pulses are allowed to enter the country s market, the entire purpose of the notifications would be defeated. The discretion in the cases of present nature, involving far-reaching impact on national economy, cannot be exercised only with reference to the hardship suggested by the importers, who had made such improper imports only for personal gains. The imports in question suffer from the vices of breach of law as also lack of bona fide and the only proper exercise of discretion would be of absolute confiscation and ensuring that these tainted goods do not enter Indian markets. Imposition of penalty on such importers; and rather heavier penalty on those who have been able to get some part of goods released is, obviously, warranted. 184. In regard to the submissions invoking equity, noticeable it is that various such features of equity were taken into consideration by the Adjudicating Authority, in the orders-in-original dated 28.08.2020 and by the High Court, in the impugned order dated 15.10.2020 while directing release of goods. We have already disapproved the orders so passed by the Adjudicating Authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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