TaxTMI 
TaxTMI 
2014 (2) TMI 1015
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....representation and the same was subsequently accepted by the intervention of Chief Commissioner of Customs, Patna zone. 3. Inasmuch as the officers felt that the said import of raw materials from China did not appear to be a case of border trade between the local residents living either side of the border, as envisaged in the Memorandum of Understanding (MoU for short) dated 13-12-1991, between India and China, Ministry of Finance, telex No. F/554/7/91-MF, dated 3-7-1992, ITC Public Notice No. 33/(PN)/92-97, dated 17-7-1992 and clarification issued by Ministry of Commerce, New Delhi vide OM No. 2/9/2005-FT (NEA), dated 2-5-2005 as well as Ministry of Finance letter F.No. 554/02/2005-LC dated 12-8-2005, the same are not eligible for exemption in terms of Notification No. 38/96-Cus. dated 23-7-1996. Accordingly, the officers seized the said consignments vide Panchnama dated 23-9-2005 and 8-10-2005. 4. Subsequent to the seizure, investigations were conducted and statements of various persons were recorded. Shri Krishna Singh Garbyal, proprietor of M/s. Krishna Enterprises in his statement recorded on 21-10-2005 stated that his firm was established in July, 2005 only; that ....
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....re initiated against the appellants by way of issuance of show cause notice dated 13-9-2000, proposing confirmation of demand of customs duty; confiscation of the imported Mulberry raw silk for contravention of the ITC Public Notice No. 33/(PN)/92-97 dated 17-7-1992, issued under Import Export Policy 1992-97, for imposition of penalties upon the appellants in terms of Sections 112 and 117 of the Customs Act, 1962. The notice also proposed confiscation of the sale proceeds of the imported goods (which were provisionally released in terms of the Hon'ble High Court order) as also appropriation of the bank guarantee. 8. The said show cause notice culminated into an impugned order passed by Commissioner, vide which he confiscated 440 cartons of raw silk imported on 2-9-1995, with an option to importer Shri Krishna Singh Garbyal, to redeem the same on payment of redemption fine of Rs. Five lakhs. He also ordered for recovery of duty of Rs. 51,24,672/- in respect of the imported goods. As regards second consignment of 720 cartons, imported on 3-10-2005, he confiscated the same with an option to Shri Krishna Singh Garbyal to get the same released on payment of redemption fine of Rs. ....
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....e Land Customs Station, Gunji and domicile certificate stands issued in his name. However, he has not accepted the claim of Shri Krishna Singh Garbyal to be a local resident, on the ground that bills of entry stands filed in the name of M/s. Krishna Enterprises, Garbyal Khera, Dharchula, District - Pithoragarh and it did not show name of any person or firm of the place Garbyang, as per the domicile certificate. He has also observed that the result of the investigation have revealed that the name of M/s. Krishna Enterprises was used by M/s. Elegant Industries, only to import the goods as border trade. In fact, the entire financial investment was made by M/s. Elegant Industries and the raw silk was to be sold by M/s. Elegant Industries, and M/s. Krishna Enterprises is only a dummy importer. However, we feel that the dispute involved in the present appeal can be resolved without making any reference to the fact as to whether M/s. Krishna Enterprises is the owner of the goods or he is a dummy importer on behalf of the M/s. Elegant Industries and as to whether the import was made as border trade. 12. Admittedly, the bill of entry stands filed by M/s. Krishna Enterprises. The raw s....
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....27 (S.C.), it was held that it is well settled position in law that exemption notification has to be read strictly and the same has to be interpreted in terms of its language. Where the language is plain and clear, effect must be given to it. In fact, the law on the above point is settled and no need is felt to multiply the case law by referring to other similar pronouncements of the Courts. 16. Having observed that there is no such condition in the notification, which stands allegedly contravened by the importer and this fact having been accepted by the Revenue also, we proceed to deal with the objections which have been made the basis for denial of the benefits of notification by the adjudicating authority. The MoU entered into by the two countries is an international obligation and has to be converted into domestic law to operationalize the same. The said MoU is required to result in enactment of law for giving an effect to the same. To deny the benefit of notification, which admittedly does not refer to any border trade, on the basis of the said MoU, without there being any corresponding Act or Notification, is neither justified nor warranted. The notification in questio....
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....ion in the notification itself, the view as expressed in the letters cannot take the place of such conditions so as to require the importers to adhere to the same. In the case of Intercontinental v. UOI - 2003 (154) E.L.T. 37, it was observed that if the notification has not provided for any condition, subsequent circular cannot impose such condition as the same would tantamount to re-writing the notification or in other words legislation by circular, which is not permissible in law. Admittedly a notification issued under the provisions of a particular Act require publication in the Official Gazette as well as requires tabling before both the Houses of Parliament and if that exercise has been carried out without condition being imposed in the notification, it would not be permissible to permit Revenue to impose such conditions by way a circular. The letters of Ministry of Finance and of Commerce relied upon by the Commissioner are internal correspondences between the departmental officers and the same are not a part of the legal enactments. The same cannot be used to curtail the benefits otherwise available to the appellants under the notification. If there was any such intention o....
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....ce is to the effect that in view of the hardships being faced by the importers at Gunji, duty free import of silk through land route from China, should not be discouraged. All these correspondences reflects upon one fact that though the Government's intention in allowing border trade were clear but the same were not incorporated in the notification in question. The Commissioner, Lucknow expressed his apprehensions about the same and also requested the Government to introduce such condition in the notification itself and that having not been done, reliance on such internal correspondence by the adjudicating authority to hold against the appellant, is not appropriate. 19.1 At this stage we may refer to Advance Ruling dated 29-8-2006 given in the case of one Shri Akash Jain [2007 (207) E.L.T. 291 (AAR)]. It stands held in the said ruling, while dealing with the scope of notification No. 38/96-Cus., dated 23-7-1996, that there is no condition except limiting the import of such goods from China through a specified land customs station and along the specified land routes, for getting the benefit of exemption of duty under notification. It was held that the exemption notification ha....
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.... Enterprises, observed that there is no stipulation in the said notification that exemption from excise duty can be claimed only by the traders/tribals living in the border area, and as such, prima facie there was no justification for the seizure of the goods. Though we agree that these observations were made by the Hon'ble High Court while passing an interim order for release of the seized goods, but such observations support the view which we have already arrived at. As such, we find no reasons to deny the exemption notification in question irrespective of the fact whether M/s. Krishna Enterprises is the actual importer or imports stands financed by M/s. Elegant Industries. 20. Though we have held in favour of the assessee on the interpretation of Notification No. 38/96-Cus., we in any case, note that there is no definition of the border trade available anywhere or the distance from the border within which the importer should have been residing. In the absence of the same, the findings of the lower authorities that Shri Krishna Singh Garbyal was not a local resident, cannot be appreciated. Admittedly, the bill of entry was filed by M/s. Krishna Enterprises and as such he ha....
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....n all documents pertaining to the instant case. The Commissioner has further observed that though the verification of grade of raw silk pertaining to bill of entry No. 23/05 could not be undertaken due to goods released provisionally to the importer but it is evident from the test report of CSTRI in respect of raw silk pertaining to bill of entry No. 54/2005 that the importer has misdeclared the goods in respect of its grade deliberately. 22. The above findings of the Commissioner are being challenged by the appellants on the ground that no anti-dumping duty stands confirmed by him in the order. The charge of misdeclaration of the description of the goods so as to make them confiscable, in terms of Section 111(m) of the Customs Act, are not sustainable on the ground that it was only a part of the consignment which was held to be of higher grade liable to anti-dumping duty. The samples drawn at the time of seizure were returned by CSTRI on the ground that not being truly representative and also the skeins being found to be entangled/ gummed. The samples were subsequently re-drawn at the back of the appellants and no Panchnama, etc., was drawn at the time of redrawing of the sa....