9911796707
TMI Blog2025 (2) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... gh prohibits the import as a policy, however the policy condition is not absolute. The same is subject to the condition that import is free if CIF is above Rs. 500/- per Kg.' So, the subject goods is made 'prohibited', once again in a grave defiance of the condition of a guiding Rule/Circular issued in this regard, by ignoring that the prohibition is only a conditional one and not an absolute one. References were made to clause (d)/para 2 of Article III, Article 5 of the SAFTA, apart from Article III of GATT, to highlight that Free Trade Agreements are part of International Law, accordingly the Govt. of India had granted concessional rate of Basic Customs Duty (BCD) for the impugned goods, but unfortunately, the Commissioner is only enforcing non-tariff restriction in the guise of MIP by treating the goods in question as 'prohibited'. Conclusion - The declared assessable value of the impugned goods did not warrant any interference, much less any re-determination as done by the proper officer in the impugned order and hence, the impugned order cannot sustain. Consequently, there cannot be any room also to impose any penalties under Sections 112 & 114AA of the Customs Act, 1962 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Shah, Director, M/s.BNM Global Ventures under Section 114AA of the Customs Act, 1962. It is against these demands that the present appeals have been filed before Tribunal. 3. In the impugned order, the Commissioner has observed that the main appellant viz. M/s. Sindhu Lakshmi Impex had imported Black Pepper from its related entity in Sri Lanka, namely M/s. Lakshmi Export and Import [LEI for short] to circumvent the Minimum Import Price (MIP) vide DGFT Notification No. 21/2015-20 dated 25.07.2018 as per which, the import of Black Pepper falling under CTH 090411 is "Prohibited" if the CIF value is below ₹500 per Kg. It appears that on the basis of an intelligence input, the DRI initiated investigation and conducted research operations at various locations, as could be seen at para 3 of the Order-in-Original and these facts are not in dispute. From the information gathered during investigation and also from the statement/s recorded during investigation, it is concluded that the importer had made imports only from the related party; it was found during investigation that the per unit cost of Black Pepper imported from LEI declared by the importer to the Customs was much highe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this regard that the importation of Black Pepper involved cost apart from freight, insurance and other overheads along with miscellaneous expenses which cumulatively made the value of the imported goods over and above the MIP, which has not been considered by the Department. Further, it was urged that the DGFT Notification did not prescribe any manner in which the price was to be charged for domestic clearance/sale and in any case, in business parlance there were multiple factors for consideration while fixing the sale value like quality of goods, demand, supply, financial obligations, etc. 7. When the DGFT Notification did not impose any restriction and when no specific or unconditional prohibition exists for import of the goods in question and admittedly, the CIF was above ₹500 per Kg. on which the importer had paid Customs duty on the declared/transaction value and had also discharged IGST, which stands accepted on the MIP as fixed by the above Notification, there cannot be any allegation as to any violation much less to any conditions of the above Notification and therefore, impugned goods cannot be termed as 'Prohibited'. 8. The Ld. Advocate inter alia contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whisper of any clause or provision and is contrary to a settled principle. They relied on the decision of the Supreme Court in the case of Amrit Foods Vs CCE, U.P - 2005 (190 ELT 433 (SC) wherein it has been categorically held that the notice should be precise as to the provision which has been contravened under the Customs Act, 1962. Therefore invocation of Section 112 of the Customs Act, 1962 cannot be pressed in the present case and further in the absence of revision of the order of assessment, no notice per se can be issued even for imposition of penalty. 8.6 It is emphasized that Section 114A of the Customs Act, 1962 can be imposed only in case of short-levy, non-levy, erroneous refund or interest. Further in the instant case, Section 28 of the Customs Act, 1962 has not been invoked and therefore the invocation of Section 114A of the Customs Act, 1962 is legally unsustainable and further in the absence of any revision of the order of assessment, no notice per se can be issued even for imposition of penalty. 8.7 It is asserted that Section 114AA can be imposed only in the case of export goods or any loss to the exchequer. Since there is no export or any loss to the exchequer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar goods in accordance with the provisions of rule 8; (v) the price of the goods for the export to a country other than India; (vi) minimum customs values; or (vii) arbitrary or fictitious values. 12. There is no dispute that in terms of Explanation (1) (i) to Rule 12 ibid, when the proper officer has reason to doubt the declared value and '.... where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 9'. 13. The next question is, is the goods imported, a prohibited goods in India? Our answer is a firm NO since, firstly the DGFT Notification No. 21/2015-2020 (supra) though prohibits the import as a policy, however the policy condition is not absolute. The same is subject to the condition that '... import is free if CIF is above Rs. 500/- per Kg.' So, the subject goods is made 'prohibited', once again in a grave defiance of the condition of a guiding Rule/Circular issued in this regard, by ignoring that the prohibition is only a conditional one and not an absolute one. 14. Further, it was the case of the appellants that they had pleaded that the goods in question were imported under preferential rate of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
