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TMI Blog2025 (2) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... an amendment in Foreign Trade policy is the sole prerogative of the Central Government as set out in section 3, 5 and 6 of the FTDR Act and the trade notice did not indicate that it was issued either with the concurrence or the approval of the Central Government. As the goods were perishable in nature, the appellants moved a Misc. Application MAT No. 1405 of 2018 with CAN No. 8761 of 2018 before the Hon'ble Division Bench of the High Court, Calcutta. After considering the factual position of the case the Honourable High Court vide their Interim Order dated 26.11.2018 granted stay on the DGFT Notifications. Accordingly, goods were allowed clearance provisionally subject to the appellants keeping security deposit of 10% of the assessable value towards probable fine and 10% of duty towards penalty. For the Assessable Value component of Rs.6,08,67,460, they have given security deposit of Rs.60,86,747 and for the Duty component of Rs.3,04,33,731, they have given security of Rs.30,43,374. In the present case, the appellant has challenged the Notifications before the Calcutta High Court. On going through that Final Order passed by the Kolkata Tribunal in the case of Rahul Agro Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 111(d) of the Customs Act, 1962 for non-compliance of the said notification issued by DGFT. b) Penalty under section 112(a) of the Customs Act, 1962 should not be levied on the importer for his acts of omission or commission and c) Redemption fine under section 125 of the Customs Act, 1962 should not be levied on the goods in lieu of confiscation. 2. The Adjudicating authority vide his Order in Original No. KOL/CUS/GRI/ADC/PORT/91/2021 dated 17.12.2021, confiscated the goods u/s 111(d) of CA'62 and imposed redemption fine of Rs. 60,00,000. Besides, penalty of Rs.60,00,000 was imposed. The appeal filed by the appellant before the Commissioner (Appeals) was dismissed by him on the ground that pre-deposit condition was not fulfilled. Being aggrieved the appellant is before the Tribunal. 3. The Ld. Advocate appearing on behalf of the appellant makes the preliminary submission about the issue of pre-deposit. He submits that since the consignments were held up, which are perishable items, the appellants moved a Misc. Application before the Hon'ble High Court Calcutta.filed a MAT No. 1405 of 2018 with CAN No. 8761 of 2018 before the Hon'ble Division Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r) quota of 3 Lakhs MTs.Vide Notification No. 04/2015-2020 dated: 25.04.2018, the Yellow Peas under Exim code 07131000 was revised from free to restricted for a period of three months only, vide Notification No. 15/2015-2020 dated: 02.07.2018, the restriction on import of peas was extended for a further period of three months i.e. till 30.09.2018. By virtue of Notification No. 32/2015-2020 dated: 30.08.2018 import of peas restriction was further extended till 30.09.2018. Notification No. 37/2015-2020 dated: 28.09.2018 the restriction of import of peas classified under EXIM code. 07131000 (Including Yellow peas, Green peas, Dun peas and Kaspa peas) was further extended till 31.12.2018. Trade Notices No. 06/2018 and 12/2018 both dated: 18.05.2018 and 19/2018 dated: 05.07.2018 were also issued by DGFT setting out the procedure and implementation of the above Notifications. 5.2 In the meantime, the appellant being a regular importer of peas for trading purpose had a firm contract with the foreign supplier M/s U.E.L. INTERNATIONAL FZE, as specified in the contract No. UELI/YP/17-18/12 dated 13.03.2018 for supply of 10000 MT of Yellow peas. Accordingly, as per the contract the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings, filed a transfer petition number 496509/2020 before the Honourable Supreme Court of India and all the petitions pending across various High Courts were transferred to the Apex Court. 5.7 The Honourable Supreme Court in the case of Agricas LLP and Others vide Judgement dated: 26.08.2020, upheld the impugned notifications and rejected the challenge made by the importers inter alia stating that: "48. Accordingly, we uphold the impugned Notification and Trade Notices and reject the challenge made by the importers. The imports if any relying on Interim order(s) would be held to be contrary to the Notifications and Trade Notices issued under the FTDR Act and would be so dealt with under provisions of the Customs Act, 1962. The writ petitions subject matter of the Transfer petitions, subject to above (what is not decided) are dismissed. Writ Petitions filed by the interveners before the respective High Courts shall dismissed in terms of this decision. Pending application(s) if any, also stand disposed of in the above terms. No order as to cost." 5.8 Thereafter, the proceedings under the present SCN were initiated, which culminated in the Penalty and Redemption Fine being im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory. He submits that since the appeal has been admitted at Tribunal, considering the deposit made in the initial stages to be sufficient for pre-deposit purposes, the objections about pre-deposit condition stands satisfied. He does not deny that the Rahul Agro Final Order referred to and cited and relied upon by the appellant is on similar issues. 7. We have gone through the Security Deposits made by the appellant, which is being reproduced for the convenience of reference : Sl. No. B/E No. B/E Date Fine Date Receipt No. Fine (in Rs.) Penalty Date Receipt No. Penalty (in Rs.) 1 2126171 20.02.2019 10.04.2019 047 655591 10.04.2019 048 327795 2 08.04.2019 008 3 2030198 12.02.2019 08.04.2019 004 670929 08.04.2019 005 335464 4 2432214 15.03.2019 08.04.2019 010 351450 08.04.2019 011 175725 5 2433006 15.03.2019 08.04.2019 006 702900 08.04.2019 007 351450 6 2131395 20.02.2019 10.04.2019 049 647253 10.04.2019 050 323627 7 2069959 15.02.2019 10.04.2019 053 615782 10.04.2019 054 307891 8 9783766 24.01.2019 05.04.2019 001 449864 05.04.2019 002 224932 9 2069902 15.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat circumstances, it is to be seen that during the pendency of the proceedings, various authorities had considered the stay of operation of the impugned notification and in one such case the Adjudicating Authority i.e. Commissioner of Customs, Chennai-Il, Chennai vide order dated 23.03.2020 has refrained from imposing redemption fine on the importer and a nominal penalty of Rs. 50,000/- was imposed. 14. In the impugned order also, the Ld. Commissioner (Appeal) has considered the submission made by the Respondent and proceeded to hold that redemption of final penalty are on higher side and reduced the redemption from penalty. But we find that although Ld. Commissioner (Appeal) has reduced the redemption fine and penalty but in the facts and circumstances of the case as appellant being regular importer and as the earlier notification made the restrictions only up to 30.06.2018 which was extended by notification dated 28.09.2018 which means that there is a gap of three months wherein restriction was not in operation for import of green peas. In that circumstances, the appellant has imported the goods from the foreign suppliers which were landed after extending restrictions. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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