TaxTMI 
TaxTMI 
2015 (6) TMI 816
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....lished slabs at the declared unit price of below US$ 60 per sq.mtr. However, the third respondent, Joint Commissioner of Customs (Group 3&4) has not permitted to clear the said goods, on the ground that DGFT Notification No. 65(RE-2010)/2009-2014 dated 04.08.2011, impugned in these Writ Petitions, provides that the goods falling under Customs Tariff Headings 68022110, 68022120 and 68029990 are freely importable, subject to the condition that CIF value should be US$ 60 and above per sq.mtr and thereby demanded duty on the enhanced value and confiscated the goods with an option to redeem on payment of duty. 3. Consequently, the third respondent initiated proceedings under Section 124 of the Customs Act 1962 (in short The Act ) and passed the impugned orders dated 19.12.2011, 19.12.2011 and 28.08.2014 respectively, by imposing penalties as mentioned therein. Aggrieved by the same, the petitioners have come forward with the present Writ Petitions, challenging the DGFT Notification No.65(RE-2010)/2009-2014 dated 04.08.2011. 4. A counter affidavit has been filed on behalf of the respondents 1 and 2, wherein it is stated that during August '2005, Government introduced a floor ....
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....mport policy and thus the imported goods become liable for confiscation under Section 111(d) of Customs Act, 1962 read with Section 3(3) of the FTDR Act, for importing the same in violation of the above said Notification No.65(RE-2010)/2009-2014 dated 04.08.2011. The importers have also become liable for penal action under Section 112(a) of the Customs Act, 1962 for having rendered the goods liable for confiscation. 8. In view of the violation of the above said provisions, the goods were confiscated with an option to redeem the same on payment of redemption, find under Section 125 of the Act and the importers were also imposed penalty under Section 112(A) of the Act. Since the goods were confiscated as per the provisions of the act under section 111(d) r/w Section 3(3) of the FTDR, the petitioners are liable to pay the redemption fee for release of the goods. With these averments, the third respondent sought for dismissal of the writ petitions. 9. Challenging the notification No.65(RE-2010)/2009-2014 dated 04.08.2011 as well as the impugned orders of confiscation and penalty, passed by the third respondent, Mr.Hari Radhakrishnan, the learned counsel appearing for the petitioners ....
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....arly provides that the right to amend the policy by a notification in the Gazette is vested with the Central Government only. Chapter 2 of the EXIM policy 2009-2014 contains general provisions regarding imports and exports. Para 2.1 of Chapter 2 provides that 'Exports and Imports' shall be free except in cases where they are regulated by the provisions of the policy. Para 2.4 of Chapter 2 empowers the DGFT to specify the procedure to be followed by an exporter or importer or by any licensing/regional authority in implementing provisions of FTDR Act and the Orders made thereunder and FTP and that, such procedures or amendments if any, shall be published by means of a public notice. Under the said para, DGFT is empowered to amend the procedure and publish the same by way of public notice. 12. The FTDR Act is enacted to provide for the development and regulation of foreign trade by facilitating imports into, and augmenting exports from India. Under Section 3, the Central Government is empowered by order published in the Official Gazette to make provision for the development and regulation of foreign trade. Under sub-section (2) of Section 3 the Central Government may by order....
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....e Central Government to delegate any power on the DGFT exercisable under Section 3, 5, 15, 16 & 19 of the FTDR Act. It is relevant to quote Section 6 which reads thus: "6. Appointment of Director General and his functions.- (1) The Central Government may appoint any person to be the Director- General of Foreign Trade for the purposes of this Act. (2) The Director-General shall advise the Central Government in the formulation of the foreign trade policy and shall be responsible for carrying out that policy. (3) The Central Government may, by Order published in the Official Gazette, direct that any power exercisable by it under this Act (other than the powers under Sections 3, 5, 15, 16 & 19) may also be exercised, in such cases and subject to such conditions, by the Director-General or such other officer subordinate to the Director General, as may be specified in the Order." 17. A conjoint reading of the aforesaid provisions would indicate that the power to formulate and announce the Foreign Trade Policy vests in the Central Government and the functions of the DGFT is to advise the Central Government at the time of formulation of the Foreign Trade Policy and responsibility for car....
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..... While announcing the importable policy for the year 2011-2012, the floor price under Chapter 68 was reviewed and increased from US$ 50 per sq.mtr. to US$ 60 per sq.mtr. vide Notification No.65 dated 04.08.2012, after a period of three years. 19. It is to be noted that the petitioners have come forward with the present Writ Petitions challenging only the Notification No.65, dated 4.8.2012 by which, it seems that the petitioners are aggrieved by imposition of floor price at US $60 per sq.mt. and they had no grievance in respect of earlier Notifications, which imposed US $50 per sq.mt. As discussed above, it is no doubt true that the DGFT has no power to amend the policy. However, it is to be noted that the Central Government made the amendments in the Schedule 1 (Imports) of the ITC (HS) Classifications of Export and Import Items, by publishing in the Gazette of India Extraordinary Part II in terms of above referred to Section 3(2) of FTDR Act, in and by which, the Import under the Exim Codes 6802 10 00, 6802 21 10, 6802 21 20, 6802 21 90, 6802 91 00 and 6802 92 00 were permitted freely provided CIF value is US $ 60 and above per square metre. This was given effect to by the DGFT ....