TaxTMI 
TaxTMI 
2024 (11) TMI 748
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 111(d) of the Customs Act,1962 read with Section3(3) of the Foreign Trade (Development and Regulations) Act,1992 (FTDR) and imposition of penalty under Section 112(a) of the Customs Act,1962 (ACT). The lower authority had vide Order-in-Original dated 17.03.2014 confiscated the subject imports and imposed redemption fines of Rs.10,00,000/- and Rs.7,00,000/- respectively on the Appellant under Section 125 of the ACT ibid, besides imposing penalties of Rs.20,00,000/- and Rs.1,00,000/- respectively under Section 112(a) of the ACT ibid. 2. The main contentions of the appellant in the appeal have been summarized below : - i. It was submitted that the impugned order was not sustainable as the restriction imposed under the said DGFT Notification never specified the Customs Tariff entry number under which the imported goods were assessed. ii. It was averred that the impugned order enhanced the value under Rule 9 of Customs Valuation Rules, 2007 (CVR) without any basis as the minimum unit price/floor price specified in the DGFT Notification for free importation was mistakenly adopted as contemporaneous price of subject imports to determine the enhanced value for assessment in term....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich would be imposed which was failed to be appreciated resulting in sustaining the huge and harsh fine and penalty on them adding to the heavy financial losses already suffered by them. 3.3 It was pointed out that it is a well settled position of law that the policy condition imposed by the DGFT in exercise of powers conferred on them under Sec. 5 of the FTDR is not legal or valid and in any case any condition imposed must be specific for considering such imports to be restricted or prohibited. In the subject notification it is recorded that import of the specified goods is permitted freely so long as the unit price for the goods is not less than 60$ or 80$ as the case may be and the notification nowhere specified that if the import value for the specified goods is less than the MSP it is to be regard as restricted. 4. The Ld. Authorised Representative Smt. Anandalakshmi Ganeshram representing the Department, reiterated the findings in the impugned order and submitted that the Appellant resorted to import of Marble and Mosaic below statutorily fixed prices by DGFT in contravention of Import Policy rendering the imports liable for confiscation and imposition of redemption fine a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hi dated 04.08.2011, thereby rendering the goods liable for confiscation under Section 111(d) of the Customs Act, 1962 read with Section 3(3) of the Foreign Trade (Development and Regulations) Act, 1992 (FTDR) and also for imposition of penalty under Section 112(a) of the Customs Act, 1962 (ACT). 8. The Appellant has contended that the confiscation, imposition of redemption fine and penalties and also the valuation adopted in terms of Rule 9 of CVR are not in accordance with the law. The Ld. Counsel for the Appellant has put forth that the enhancement of value to the ceiling price as specified in the DGFT Notifications for payment of Customs duty and subsequent confiscation of goods citing the said Notification are both mutually exclusive and cannot operate in tandem and hence the impugned order could have done away with invocation of restrictions imposed by import policy once the values were enhanced to the ceiling price. 9. In order to have a better understanding of the implications of the said DGFT Notifications which have been reproduced below : - Notification No. 65 (RE-2010)/2009-2014 New Delhi dated 4th August, 2011 reads as under : - "Subject : Import policy of Worked ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....quare metre. 3. After amendment the entry would read as below (amended policy conditions) : "Import permitted freely provided CIF value is US$ 80 & above per square metre." 4. The effect of this Notification :- Now the import of items under the ITC HS Codes specified above is permitted freely if CIF value is US$ 80 and above per square meter." The Minimum Import Prices of Marble and Mosaic have been fixed at US$ 60 and US$ 80 respectively in terms of above DGFT's Notifications and the Appellant by importing these specified items at much below these prices have contravened the provisions of Foreign Trade (Development and Regulations) Act, 1992, thus, rendering these imported Marble and Mosaic as 'restricted goods' for import. 10. The Tribunal Ahmedabad in the case of Siemens Gamesha Renewable Power Pvt. Ltd. Vs. Commissioner of Customs, Mundra [2019 (365) ELT 631 (Tri.-Ahmd.)] has ruled that the DGFT has power under Section 3 of Foreign Trade (Development & Rule) Act, 1992 to impose any condition for import. The relevant para reads as given below: - "7. As per above section, in our considered view, the DGFT is empowered to impose restriction for import. The fixing of MIP is ....