2018 (8) TMI 371 - AT - Customs

Tribunal Upholds DGFT's Notification Power on Import Price; Reduces Penalties

The Tribunal upheld the DGFT's power to issue notifications under Section 3 of the FT(DR) Act, 1992, allowing restrictions like the Minimum Import Price ... Valuation of imported goods - it was alleged that appellant declared the price of the imported goods which is below the minimum import price fixed by DGFT for import of such goods - enhancement of value - Revenue has enhanced the value only on the basis of minimum import price - violation of condition of Foreign Trade Policy - N/N. 38/2015-2020 dated 5.2.2016. Whether DGFT has power to issue notification under Section 3 of FT(DR) Act, 1992 for fixing the minimum import price? - Held that:- The DGFT is empowered to impose restriction for import. The fixing of MIP is not to enhance the value of the goods but only to impose of restriction. Any type of restriction can be imposed by the DGFT by issuing the Notification, therefore, the DGFT is well within the power under Section 3 of FT (D&R) Act, 1992 to impose any condition for import. Whether enhancement of the value for the purpose of assessment on the basis of MIP is legal and correct? - Section 14 of Customs Act - Held that:- In the facts of the case the only reason for enhancement of the value is MIP fixed by DGFT. The MIP fixed by DGFT is only as a measure of restriction imposed for import of such goods. DGFT has not enhanced the value of the goods imported. If at all the custom intent to fix the value for the purpose of assessment in that case it can be done by issue of notification under the customs act for fixing the tariff value which is not the case here. Moreover, the custom authority have not carried out any investigation or brought any material on record to discard the value declared by the appellant. Therefore merely on the basis of MIP fixed by DGFT, the Customs valuation cannot be disturbed - the customs valuation cannot be altered or enhanced on the basis of minimum import price fixed by the DGFT - enhancement of value set aside. Whether redemption fine and penalty for the violation of Foreign Trade Policy is legal and correct? - Held that:- There is indeed violation of Foreign Trade Policy that despite the minimum import price fixed by the DGFT, the appellant have imported the goods which is carrying the value below minimum import price, therefore, they have violated the condition, however, this violation does not result into any Revenue loss to the Government or any undue gain to the appellants - the redemption fine and penalty is reduced. Appeal allowed in part. Issues:1) Power of DGFT to issue notification under Section 3 of FT(DR) Act, 1992 for fixing the minimum import price.2) Legality and correctness of enhancement of value for assessment based on Minimum Import Price (MIP).3) Legality and correctness of redemption fine and penalty for violation of Foreign Trade Policy.Analysis:Issue 1:The DGFT's power to issue notifications under Section 3 of FT(DR) Act, 1992 was challenged. The Tribunal held that DGFT is empowered to impose restrictions for imports, such as fixing the MIP, under Section 3. The MIP is not meant to enhance the value of goods but to impose restrictions, and DGFT has the authority to impose conditions for imports.Issue 2:Regarding the enhancement of value for assessment based on MIP, the Tribunal emphasized that Customs valuation is governed by Section 14, where transaction value should be accepted unless disputed. The Tribunal found that the Customs authority cannot enhance valuation solely based on MIP set by DGFT, as it is not a proper method under Customs law. The Tribunal cited a previous judgment to support this stance and set aside the lower authority's enhancement of value.Issue 3:Concerning the redemption fine and penalty imposed for violating the Foreign Trade Policy by importing goods below the MIP, the Tribunal acknowledged the violation but noted it did not result in revenue loss or undue gain. The Tribunal deemed the penalties disproportionate and reduced them significantly, considering the gravity of the offense and the setting aside of the value enhancement. The redemption fines and penalties were reduced accordingly for each appeal.In conclusion, the Tribunal partly allowed all appeals by modifying the impugned orders to reduce the redemption fines and penalties. The judgment clarified the powers of DGFT, the legality of value enhancement based on MIP, and the proportionality of penalties for Foreign Trade Policy violations.