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TMI Blog2022 (12) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... e (Development and Regulation) Act, 1992. The learned Tribunal had followed the decision of the Co-ordinate Bench of the Tribunal in the case of M/S INTERNATIONAL SEAPORT DREDGING LTD. VERSUS CC ST, VISAKHAPATNAM-CUS [ 2016 (11) TMI 176 - CESTAT HYDERABAD ] and held that the betel nuts which were imported by the respondent by declaring the prices which were less than the minimum import price specified by the DGFT cannot be held as import 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 VERSUS NAVIN KR. JHA, ARUP KUMAR GARAI, M/S. SHEROWALI VANIJYA PVT. LTD., SOUMEN DAS, MOHAMMED SABEER, SUNIL AGARWAL, ANGKITA DHAR, RAHUL SOMANI, ARJUN KUMAR CHAUDHURY, MOHAMMED RAZA, M/S. S.S. TRADING CO., AMIT KUMAR, M/S. MAA BARA SHYAMA ENTERPRISES, BIMAL KUMAR MODI, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Trade (Development and Regulation) Act, 1992; notification issued by the Central Government in fixing the minimum price for importation of betel nuts; the judgement of the Division Bench of the Calcutta High Court in upholding the power of the Director General of Foreign Trade in issuing notification for fixation of the minimum price for importation of betel nuts? ii) Whether the order of the Learned Tribunal have made the provisions of the Foreign Trade (Development and Regulation) Act, 1992 and the authority of the Central Government to regulate the importation of betel nuts otiose resulting in creating a precedence by which the Central Government shall not have the power to regulate and/or control the importation of any item, which might hamper the interest of the domestic growers? iii) Whether the Learned Tribunal has come to a perverse finding by not taking into consideration the power and competence of the DGFT to issue notification restricting the importation of betel nuts below the CIF value fixed by the DGF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 regulation of foreign trade. There cannot be any development without regulation. For a planned development regulations are necessary. The Central Government is authorised to formulate the form of regulation under the provisions of the aforesaid Foreign Trade (Development and Regulation) Act, 1992. The question for consideration was whether the revision effected by the impugned notification dated 13th May, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme 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 . Sub-section (4) to Section 3 of the FTDR Act, therefore, in the context of import and exports or prohibition of imports or exports of goods states that no permit or licence shall be necessary or required except as may be required under the FTDR Act, rules or orders made thereunder. The expression order , as per clause (h) to Section (2) of the FTA means any Order made by the Central Government under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 expressly or by necessary implication incorporated and transposed in the domestic law, that is, the FTDR Act. 79. Accordingly, we uphold the impugned notifications and the trade notices and reject the challenge made by the importers. The imports, if any, made relying on interim order(s) would be held to be contrary to the notifications and the trades notices issued under the FTDR Act and would be so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 the High Court. Therefore, no leniency in the name of equity can be claimed by these importers. In fact, any invocation of equity in these matters is even otherwise ruled out in view of specific rejection of the claim of bona fide imports by this Court in Agricas (supra). Once this Court has reached to the conclusion that a particular action is wanting in bona fide, the perpetrator cannot c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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