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TMI Blog2024 (4) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... n of 'special licence' approved by EXIM Facilitation Committee (EFC) of the Directorate General of Foreign Trade (DGFT), the impediment to clearance from lack thereof was brought to the notice of the importer. It is on record that intimation of having applied for licences from the competent authority was communicated in letter dated 27th August 2007. It was also on record that the importer had, in their written submission resisting the objection to import, waived the right to be issued with show cause notice and to be heard in person. Notwithstanding these circumstances, the Commissioner of Customs hastened to confiscate the impugned goods for lack of licence warranting recourse to section 111(d) of Customs Act, 1962 but allowed redemption on payment of fine of Rs. 1,29,18,926 under section 125 of Customs Act, 1962 and imposed penalty of Rs. 12,87,000. Appeal [C/913/07-Mum ] against that order [order-in-original no. 83/2007 dated 28th September 2007], in challenge before the Tribunal on several grounds, was disposed off by final order [A/229/12/CSTB/C-I dated 23rd February 2012] remanding the matter back to the original authority as noted thus '6. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Foreign Trade (Development & Regulation) Act, 1992 read with the Exim Policy and thus, the goods were liable to confiscation under Section 111(d) of the Customs Act, 1962 and importer was liable for penal action under Section 112(a) of the Customs Act, 1962. I am confined to re-adjudicate the case with respect to the validity of import of the said goods under the Licence produced before me in terms of the Hon'ble Cestat's remand order. ORDER 17. I refrain from deviating from anything passed in earlier order vide order in Original No. 83/2007 dated 28.09.2007. (i) I order confiscation of the impugned goods under Section 111 (d) of the Customs Act, 1962. However, in exercise of the powers conferred on me under Section 123 of the Act ibid, 1 allow give the importer an option to redeem the same on payment of fine, in lieu of confiscation. B/E wise as per Column 4 of the table below. This option must be exercised within a month of the receipt of this order. While deciding the quantum of redemption fine, due note has been taken of the margin of profit on the value of the impugned goods which was found out to be about 47% to 50% of the value. (ii) I also impose pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the first of the licences covered the impugned goods as evident from the contents of the condition sheet attached thereto. 5. It was further submitted that licence, issued subsequent to imports but intended for already executed transactions, has been judicially held to be valid by the Tribunal in Zazman Exports v. Commissioner of Customs, Chennai [2000 (119) ELT 688 (Tribunal)] and in Michigan Engineers Pvt Ltd v. Commissioner of Customs (Import), Mumbai [2009 (245) ELT 586 (Tri-Mumbai)]. Reliance was also placed on the decision of the Tribunal in Rama Newsprints & Paper Ltd v. Commissioner of Customs, Kandla [2000 (122) ELT 473 (Tribunal)] which held that '7. Whatever be the speculations on these aspects or the conclusion of the licensing authority, our decision cannot be guiding by it. The fact remains that the licence was amended by the authority competent to do so validating import of the goods made, and send by the Directorate of Revenue Intelligence. It is not possible for us to accept either on principles of law or in terms of the Policy that this amendment will not operate retrospectively. The provision of the policy pointed out by the advocate for the appellant, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that condition is granted there is no illegality. We have concluded above that there would be no difference between such a dispensation granted earlier, and one granted subsequent to import. 10. We have to take note of the fact that the customs authorities cannot question by the refusal to accept it, a permission for import on the ground that such permission is contrary to the policy, or refuse to intimate the authority of import licence was any of the condition thereon. The licence has been granted by the authority who has jurisdiction to do so. It is not open to the department not to accept it on its perception that the licence was not issued in accordance with the policy. The observation of the Bombay High Court in Lokash Chemical Works v. CC, Prev. making a distinction between the function of the licensing authority and the customs authority and emphasizing that one cannot trespass upon the area occupied by the other are relevant. It is relevant to note here the amendment to licence was made nine months before issue of the notice to show cause 28-11-1994 and therefore could not have said to confirm the exercise of discretion and adjudication proceedings in force. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of officers that encourages megalomaniac disregard for horizontal and vertical components of governance. Such defiance of appellate directions suffices to invalidate the impugned order. 8. Needless to say, the cocooned existence of tax administration, amply evinced in the attitude of this adjudicating authority, is manifest in refusal to acknowledge the limits of statutory empowerment. This was not a dispute over duties of customs but the implementation of prohibition to be overcome only with licence issued by Directorate General of Foreign Trade (DGFT) in pursuance of its mandate to administer the trade policy enforced through the agency of customs administration. Quantitative restrictions, implemented through special licence regime, is the exclusive remit of the licencing authority. By its very nature, the date of issue of licence is not to material to quantitative restriction; its relevance to the impugned goods alone is. On that there has been no controverting either in the impugned order or in submissions of Learned Authorised Representative. 9. It is also surprising that the adjudicating authority, and perhaps in ignorance, has placed such emphasis on the adherence to chr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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