TaxTMI 
TaxTMI 
2023 (1) TMI 814
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....e Trading Enterprises ("STEs") is in accordance with the ITC (HS) Policy. Since the facts are identical in all the above appeals, facts of M/s. Pooja Chemicals are considered for ease of convenience. 2. Briefly, the facts are that Prior to 28-4-2015, under Heading No. 3102 1000 of the ITC (HS) Policy, import of Urea was allowed through STEs viz. STC, MMTC and Indian Potash Limited. In that view, it appears that by letter dated 15th May 2013, the Government of India, Ministry of Chemical and Fertilizers had permitted the Appellant to import Technical Grade Urea through any STEs (i.e. MMTC, IPL, STC). The Appellant, accordingly, in the year 2013 purchased on High Seas, consignments of Urea imported by the STE viz. MMTC and sought clearance t....
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....ill of Entry. The Additional Commissioner of Customs, Mundra, however, by his Order-In-Original dated 25-04-2019 held that the goods are to be held liable for confiscation under Section 111(d) of the Customs Act 1962 and imposed penalty of Rs. 30,00,000/- on the appellant under Section 112(a) of the said Act. Similar Orders-In-Original were passed in respect of all the appellants herein. The first appellate authority has upheld the said Orders-In-Original. Being aggrieved, the appellants are in appeals before this Tribunal. 03. Shri J.C. Patel and Shri Rahul Gajera, learned counsels for the Appellants assailed the OIAs on the ground that under Heading No.3102 1000 of the ITC (HS) Policy2009 to 2015, does not stipulate that Urea was allowed....
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....yderabad Industries, (c) CC v Coromondal Fertilizers LTd- 1988 (33) ELT 451: In this case rock phosphate and sulphur were canalized through MMTC who sold the same on High Seas to Coromondal Fertilizers Ltd. (d) Godavari Fertilizers & Chemicals Ltd v CC-1986 (81) ELT 535: In this case Phosphoric Acid was canalized through MMTC who sold the same on High Seas to Godavari Fertilizers & Chemicals Ltd. (e) Indian Farmers Fertilizers Co-op Ltd v PCC-2020 (373) ELT 530: In this case, Urea of Fertilizer grade, which is canalised through STE, was sold on High Seas first by STE to Government of India and then again on High Seas by Government of India to IFFCO (f) Board's Circular No.49/89-CX. 8 dated 2-11-1989 in which the procedure for taking....
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.... Urea was allowed to be imported only by State Trading Enterprises; the said Heading allows import of Urea through STC, MMTC and Indian Potash Limited. Clearly, the word used in the said Heading 3102 1000 is "through" and not "by" STC, MMTC and Indian Potash. In view of above, when the import is allowed "through" STC, MMTC and Indian Potash, it means that so long as the purchase of the Urea from the foreign supplier is effected by STC, MMTC or Indian Potash and payment to foreign supplier is made by STC, MMTC or Indian Potash, who in turn sell the same to a party in India whether on High Seas or otherwise, the import is clearly through STC, MMTC or Indian Potash. 5.1 Learned Commissioner (Appeals) clearly erred in holding that under the Im....
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....ed to the Appellant and such import has to be made by the Appellant through any STE, which only means that the STE would purchase the Urea from a foreign supplier and then sell the same to the Appellant on High Seas. This is the only way in which the permission to the Appellant to import through STE can be implemented and operated. Learned Commissioner (Appeals) finding that per condition no. (xiv) of Permissions of the Government of India, Ministry of Chemical and Fertilizers, permission was granted to the Appellant only for domestic purchase of Urea from STE is also erroneous. There is absolutely no such restriction in the said condition no. (xiv). Neither does condition no.(xiv) contain any restriction that purchase shall be made only do....
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....n case of imports which are canalized through STEs, the STEs place the order on the foreign supplier and thereafter effect High Seas sale of the same to the Indian Buyers. This is evident from the judgments and Board Circular supra. As laid down in the following judgments, where the import is in accordance with a consistent past practice, the question of confiscation under Section 111(d) and imposition of penalty under Section 112 of the Customs Act 1962 does not arise: * Gujarat State Export Corporation Ltd v UOI - 1984 (17) ELT 50 * Memon Associates v CC - 1988 (34) ELT 367 * Trident Agencies v CC - 1989 (45) ELT 116 * Varson Chemicals P. Ltd v CC - 1987 (27) ELT 55 The judgment in the case of Marico Industries Ltd v CC - 2007 (2....