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TMI Blog2024 (6) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant cannot read into it that it has not been issued under sub-clause (2) of Section 3. Moreover, the Trade Notice referred by the Revenue which was issued by DGFT categorically states that the imported items must have a unit CIF value equal to or above the MIP. As per para 2 of the notification letter of credit is also essential to claim the exemption. The appellant admits that on the date of import the notification was applicable and the letter of credit was also not available to claim the exemption and his only plea is that considering the unusual circumstances under which the import happened the goods are not liable for confiscation. The Customs is legally bound by the notifications issued by the DGFT and therefore, the notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vessel on 08.02.2016. The said imports were also not covered by a letter of credit entered into before the date of issue of notification, the consignment will not fall under the category of the goods exempted from the scope of the said notification. Accordingly, the Commissioner held that the goods were liable for confiscation under Section 111(d) of the customs Act 1962 read with Section 3 (3) of the FTDR Act 1992. The goods were allowed to be redeemed on payment of fine of Rs. 15,00,000/-. 2. The Learned counsel submits that the appellants had placed orders with the supplier in December 2015 against the proforma Invoice dated 22.12.2015 by making advance payment of USD 34731.11 on 29.12.2015 and USD 18468.89 on 15.01.2016 total USD 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that the notification is not issued under Section 3(2) of the FTDR Act as claimed by the Commissioner in the impugned order and therefore, it is not applicable in the present case. 3. The AR reiterating the findings of the learned Commissioner submits that since the goods are liable for confiscation the redemption fine imposed on them is justified. He also relies on Trade Notice No. 17/2016 dated 10.02.2016 issued by the Director General of Foreign Trade (DGFT), Ministry of Commerce and Industry with regard to questions raised on the Notification 38/2016 clarified as below: Question 3 : Whether it is possible to import items covered under Notification No. 38 (2015-2020) having a unit CIF import price below the MIP by paying custom du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the notification 38/2015-20 is issued provides the Central Government powers Under Section 3 of the FTDR Act, to issue orders to regulate imports as well as exports. Section 3 is reproduced below: Power of Central Government to make Orders and Announce Export and Import Policy 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. The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt s/shipments under Letter of' Credit already entered into before the date of this notification shall be exempted from the Minimum Import Price condition subject to Para 1.05(b) of Foreign Trade Policy, 2015-20. 3. Effect of this Notification: Minimum Import Price (MIP) is introduced against 173 HS Codes under Chapter 72 of ITC (HS), 2012 Schedule-I (Import Policy) as detailed in the Annex. (Anup Wadhawan) Director General of Foreign Trade E-mail: dgft[at]nic [dot] in 4.1 As per the Section 3 reproduced above, the DGFT is empowered to impose restrictions for import and accordingly the minimum import price imposed by the DGFT vide the above notification is also justified. The notification 38/2015-20 is issued under Section 3 of the FTDR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have interpreted as to whether the goods in question can be called as restricted items. The respondent ought to have sought a clarification directly from the concerned authority in DGFT. In the alternative, the respondent could have mandated the petitioner to move the competent authority under Foreign Trade (Development and Regulation) Act, 1992 and obtain a clarification. Instead of doing so, the respondent applied his own understanding of the policy notification. What the respondent has done is not in accordance with Section 17 of the Customs Act. 4.2 The Tribunal in identical set of facts in the case of Gamesha Renewable Power Pvt. Ltd. Vs. Commissioner of Customs (supra) as submitted by the Revenue, held that the Commissioner was justif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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