2023 (12) TMI 196 - HC - Customs

Gujarat HC upholds customs authorities' jurisdiction in AIFTA duty exemption fraud cases involving Section 46(4) violations

The Gujarat HC dismissed petitions challenging customs authorities' jurisdiction in proceedings for wrongful availment of AIFTA duty exemption benefits. ... Jurisdiction of Customs authorities - Claim of benefit of AIFTA - Wrongful availment of benefit of exemption of basic customs duty under Notification No. 46/2011 - fraudulently obtaining Country of Origin certificate by the supplier - submitting incorrect declaration while presenting the bills of entry under Section 46(4) of the Customs Act, 1962 - recovery of differentail duty alongwith interest and penalty. It is the case and the contention of the petitioners in alia that the proceedings initiated by the respondent customs authorities and the orders consequently passed are without jurisdiction. HELD THAT:- It is well settled that the Directive Principle provisions of Part IV of the Constitution are not enforceable in the Court of law, however, it is true that they are guiding principles fundamental to the governance of the country and that in interpretation of the fundamental rights, and in constitutional interpretation in any area, the Directive Principles become an aid to play their role, however, for noncompliance of any of the Directives in Part IV, a citizen cannot seek remedy through courts. The Court also cannot compel the State to implement the Directives. Looking to the language of Article 24 juxtaposed with the aspects of the present dispute and the controversy about the contents of RVC in the Country of Origin Certificate, it is debatable and doubtful whether the provisions of Article 24 would apply. What the Article contemplates is that a dispute concerning origin determination, classification of products or other related matters, the Government authorities of the exporting and importing parties may consult each other. In the present case, the origin of goods to be of Malaysia is not in dispute - Nor the dispute relates to classification of products or other related matters. However, the contention of the petitioner that Article 24 mechanism should have been resorted to by the respondents may be dealt with irrespective of and independent of the above aspect and consideration. In Entertainment Network (India) Limited [2008 (5) TMI 671 - SUPREME COURT], the Supreme Court when observed that in interpreting the municipal laws, the international norms can be relied on for the purpose including to fill up the gaps in law, the Supreme Court speaks of gaps to be filled up in the interpretational process only. The Court cannot apply treaty provision not forming part of the State law and fill the gap. Filling of the gap is not to be perceived in this way which otherwise would be contrary to the basic principle that without competent legislation at the sovereign State level, the treaty provision cannot be enforced. When AIFTA Article 24 is not part of State law and Indian law making body has not recognised it for its implementation by excluding it from statutory law and rules, the proceedings taken out against the petitioner under the substantive provision of Customs Act, cannot become bad or stand illegal on their count. The suppression of facts is evident from the findings recorded by the Director of Revenue Intelligence which provided the basis for the Customs authorities to act and exercise the powers, was in respect of contents of wrongfully showing of RVC of the goods. The details for arriving at RVC was misleading and there was suppression of due and correct facts - The facts of the instant cases could attract the provisions of section 28 (4) and attendant provisions. Due to wrongful availment of the concession in the duty(0%), there was non-payment or short levy of the Customs duty in the goods and the exemption notification benefit was not available. The suppression of fact is clearly attributed to the petitioners inasmuch as what was required to be disclosed and proof of contents of the Bills of Entry was to be subscribed in form of declaration under Section 46 of the Act. The petitioners had been in regular course of business of import and acted in such course - In the present case, the Origin Certificate containing the RVC value details was part and parcel of the documents for which truthfulness was declared. Procedural provisions cannot override the substantial statutory provisions of the Customs Act. It is trite that non-compliance of procedural law would not automatically vitiate the legally permissible action taken under the substantive legal provisions - It is the substantive law which would govern and override. This Court is exercising jurisdiction under Article 226 of the Constitution. In that view, the finding of facts stands binding. Even otherwise, having regard to the cogent nature of the findings, they do not warrant any interference by the Court. The action initiated and the impugned order passed needs to be upheld. The Order-in-Original dated 29.05.2020 challenged in Special Civil Application No. 14028 of 2020 and in Special Civil Application No. 13365 of 2020, as also Order-in-Original dated 24.06.2020 impugned in Special Civil Application No. 14937 of 2020 passed by Additional Commissioner, Customs House, Kandla and by Assistant Commissioner, Customs House, Mundra, respectively could not be said to be without jurisdiction - application dismissed. Issues Involved:1. Whether the customs authorities had jurisdiction to proceed under the Customs Act without invoking AIFTA Article 24.2. Whether the benefit of exemption in duty was rightly denied under Notification No. 46/2011.3. Whether the extended period under Section 28(4) of the Customs Act was properly invoked.4. Whether non-observance of procedural time limits in Operational Certification Procedures invalidated the action under the Customs Act.5. Whether the substantive provisions of the Customs Act have dominion over procedural aspects of Rules of Origin.Summary:Jurisdiction of Customs Authorities:The customs authorities were found to have jurisdiction to proceed under the Customs Act without invoking AIFTA Article 24. The Court held that AIFTA Article 24, though part of the international treaty, was not transformed into Indian law and thus lacked enforceability. The Court emphasized that international treaties do not automatically become enforceable within a State unless transformed into domestic law by the sovereign legislature.Denial of Exemption in Duty:The customs authorities were justified in denying the benefit of exemption in duty under Notification No. 46/2011. The petitioners were found to have produced misleading Certificates of Country Origin by misrepresenting and suppressing the Regional Value Content (RVC), thereby wrongfully claiming preferential treatment in payment of basic Customs duty.Extended Period Under Section 28(4):The extended period under Section 28(4) of the Customs Act was properly invoked. The Court noted that the suppression of facts regarding the RVC content in the Origin Certificate justified the invocation of the extended period for recovery of duties not levied or short-paid.Non-Observance of Procedural Time Limits:Non-observance of procedural time limits in the Operational Certification Procedures did not invalidate the action under the substantive provisions of the Customs Act. The Court held that procedural aspects stand subordinate to substantive provisions, and non-compliance with procedural timelines would not negate the operation of substantive law.Dominion of Substantive Provisions:The substantive provisions of the Customs Act were held to have dominion over the procedural aspects of the Rules of Origin. The findings of fact regarding the fraudulent and suppressive contents about RVC provided a solid base for the Customs authorities to proceed under Section 28(4) of the Act.Conclusion:The Court upheld the Orders-in-Original and dismissed all four Special Civil Applications, affirming the jurisdiction and actions of the customs authorities under the substantive provisions of the Customs Act. The procedural non-compliance did not vitiate the legally permissible actions taken under the substantive law.