TaxTMI 
TaxTMI 
2020 (10) TMI 1140
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....s of 99.99% purity weighing 1 Kg, which was valued at Rs. 29,95,524/-. The aforesaid goods were imported from Korea. Admittedly, the respondent is neither nominated bank nor a nominated agency or a holder of star or premium trading house. The Additional Commissioner issued show cause notices dated 17.10.2017 and 10.11.2017 to the respondent on the ground that respondent is neither a nominated bank nor a nominated agency as specified by Directorate General of Foreign Trade (DGFT) or in possession of status of star and premium trading houses and therefore, is not permitted to import the gold and the gold in question has been imported in contravention of the import policy envisaged by DGFT based on regulations promulgated by Reserve Bank of India. Therefore, the respondent was asked to show cause as to why an action to confiscate the goods in question be not taken under Section 111 of the Act and penalty under Section 112 of the Act be not imposed on it. The respondent in its replies submitted that it is an ordinary importer and as per the prevalent foreign trade policy, all the goods were freely importable without any prohibition. The Additional Commissioner of Customs by orders date....
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....earned counsel for the appellant submitted that the order passed by the tribunal is erroneous and the tribunal ought to have appreciated that under Para 2.01 of the Foreign Trade Policy 2015-2020, import and export are free subject to regulation. While inviting our attention to para 2.04, it is submitted that DGFT is authorized for formulating rules, procedure and amendments to be followed by an exporter or importer or by any licensing / regional authority or by any other authority for the purposes of implementing the provision for Foreign Trade (Development and Regulation) Act, 1992. It is also submitted that the correct classification of the goods is under CTH 7118900 and therefore, the import of gold is restricted and is subject to regulations framed by Reserve Bank of India. It is also urged that intention of the legislature is not permit import of gold except by a nominated agency. It is also contended that the tribunal erred in holding that Reserve Bank of India has no role or power to control the import of the gold. In this connection, reference has been made to Section 17(11) and Section 40 of the Reserve Bank of India Act, 1934. It is also pointed out that Reserve Bank of ....
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....ted therewith or incidental thereto. Section 3 of the Act deals with Powers of the Central Government to make provisions relating to imports and exports. Section 3(2) empowers the Central Government to make a provision for prohibiting, restricting or otherwise regulating, in all cases or in a specific class of clauses and subject to such exceptions, if any, as may be made by or under the order the import or export of goods or services of technology, by an order published in the official gazette. Section 3(4) of the Act provides that without prejudice to contained in any other law, rules, regulation, notification or order, no permit or licence shall be necessary for import or export of goods nor any goods shall be prohibited for import or export except, as may be required under this Act, or Rules, or orders made thereunder. Section 5 of the Act provides that Central Government may from time to time formulate and announce by notification in the official gazette, the Foreign Trade Policy and may also amend the same. Thus, the Foreign Trade Policy which has been issued by the Central Government in exercise of powers under Section 5 of the Act has the statutory force. 7. Para 2.01 of t....
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....the respondent. 10. Similarly, the gold granules were imported on 21.09.2017 and thereafter DGFT issued a Notification dated 18.12.2019 by which import policy was amended and gold in any form was allowed only to be imported through nominated agencies as notified by the Reserve Bank of India in case of Banks and for other agencies by the DGFT. Thus, it is evident that on the date when the gold granules were imported i.e., on 21.09.2017, there was no restriction on its import and the restriction was imposed subsequently on 18.12.2019 by the DGFT by way of Notification. Thus, when gold medallions and gold granules were imported, they were freely importable and the same was brought under the restricted category subsequently. 11. It is not the case of the respondent that it is a nominated agency. It is pertinent to mention here that the Circulars issued by the Reserve Bank of India apply where the gold is imported by nominated banks as notified by Reserve Bank of India and nominated agencies as notified by DGFT. The gold medallions as well as the gold granules fall under CTH 71141910 and 710811300 respectively. It is pertinent to mention here that the Circulars issued by the Reserve B....