TaxTMI 
TaxTMI 
2025 (12) TMI 904
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....US/ 2024-25, 96/CUS/NOIDA/APPL/NCUS/ 202425 & 97/CUS/NOIDA/APPL/NCUS/ 2024-25, all dated 22.05.2024 filed by the appellants are hereby rejected. 2.1 Based on an intelligence that appellant 1 had ⮚ imported "Ethephon", a pesticide which is restricted item and requires certificate of registration from Central Insecticide Board and Registration Committee (CIB & RC), by mis-declaring the same as "ethylene ripener" under CTH-38249990; ⮚ they have filed Bill of Entry No 4477470 dated 28.06.2021 for import of another 23000 kgs of goods declared as "Ethylene Ripener 20%" imported in Container No OOLU1581421 a search was conducted on 24.06.2021 by officers of the Direct of Revenue Intelligence, at M/s Gold Ripe International Pvt. Ltd. Khasra No. 1310, Village Kashi, Gagol Road, Meerut, Uttar Pradesh. (Appellant 1) 2.2 At the time of search: ⮚ 30576.16 Kgs of goods decalred as "ethylene ripener" was found in raw form and finished/packed form; ⮚ Some packing machines, bend sealer machine, strapping machine and lamination machine were found; ⮚ On the finished goods following was mentioned; "This c....
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....fiscate the goods weighing 30576.16 Kg valued at Rs.25,22,233/- seized at factory premises of M/s Goldripe International Pvt. Ltd Khasra No. 1310, Village Kashi, Gagol Road, Meerut, Uttar Pradesh and goods weighing 23000 Kg valued at Rs.18,86,115/- imported vide Bill of Entry No.4477470 dt. 28/6/2021 at CFS -Startrack Terminals, ICD Dadriunder section 111 (d), 111( & 111(m) of the Customs Act, 1962. However, I give an option to redeem the said goods under section 125 of the Customs Act, 1962 on payment of redemption fine collectively Rs.5,00,000/- (Rupees five lakhs only) to re-export the said goods within 30 days from the date of receipt of this order. In an event of failure to re-export the impugned goods within the stipulated time period, the same shall be destructed at the cost of the importer. (ii) I impose penalty of Rs. 1,00,000/- (Rupees One lakh only) upon M/s Goldripe International Pvt. Ltd. addressed at Khasra No. 1310, Village Kashi, Gagol Road, Meerut, Uttar Pradesh under section 112(a)(i) of the Customs Act, 1962; (iii) I impose penalty of Rs. 1,00,000/- (Rupees One lakh only) upon Sh. Ravinder Kumar Nagpal, H.No.117, Sector-14, Vasundhara, Near Atla....
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....After dipping the sachet in water for 5-10 secs, the sachet is placed in the box of fruits. The ethylene released help in ripening of fruit. The said mixture do not conduct any function as insecticide, herbicides or pesticides. ⮚ Ethylene ripener is not a pesticide although it contains Ethephon which can only be 5-8% when extracted in lab. ⮚ By virtue of section 38 (1) (b) the provision of Insecticide Act, 1968 are not applicable to them. ⮚ Ethephon which was registered in CIB as plant growth regulator was used on plant (before harvesting) and the product imported by the appellant uses Ethephon as main chemical supported by other chemical and is used for generation of ethylene. ⮚ The use of ethylene for ripening of Fruits have been approved by FSSAI in the Month of August 2018. ⮚ FSSAI had by guidance note issued a direction under Section 16 (5) of Food Safety and Standard Act, 2006 and clarified that Ethephon with alkalis packed in sachets can be used for the purpose of generating ethylene gas. Thus there is no embargo in using Ethephon for ripening of fruits. ⮚ Therefore appellant is n....
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....follows: 5.4.1 Second issue raised by the appellant is that the Show Cause Notice has not provided the copy of the test report to them. It is seen that the Show Cause Notice has mentioned in para 4 that the samples were drawn during the search proceedings at factory premises and also from the goods covered under Bills of Entry filed at ICD Dadri. It is seen that the Show Cause Notice alleges that the Test- Report revealed that the goods imported by the appellant contain Ethephon. It is pertinent to mention that nowhere in the grounds of appeal the appellant has contested the said allegation of the Show Cause notice. The appellant has also not disputed the findings of the earlier Test Reports of the Bill of Entry No 3247444 dated 15.05.2019 and B.E No 3010158 dated 27.04.2019 wherein the goods were found to contain Ethephon. Further the appellant himself in the grounds have acknowledged that the goods contain 5% to 8 % of Ethephon. 5.4.2 Thus, in spite of not providing the copy of the Test Report as relied upon in the Show Cause Notice, the fact that the impugned goods contained Ethephon is undisputed. It is the only substantive finding of the Test Report which has....
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....ltiple consignments under the present Bills of Entry/Purchases/Purchase orders /Invoices mentioned in this Writ petition". 5.5.3 The Hon'ble Court in the W.P (L) No,1477 of 2018 has observed that "5. Mr. Rustomjee, on instructions states that without prejudice to their rights and contentions particularly the grounds in this Petition, the Petitioner will make an application for the issuance of an import permit within one week from today. We take this statement as an undertaking to this Court. 6. On a Copy of the applications made being produced, the Respondents will allow the consignments to be cleared and which clearance will also be without the prejudice to their rights and contentions in this affidavit in Reply, 8, .. The above order will operate as a ad-interim order but strictly without prejudice to the Rights and contentions of both sides....." 5.5.4 From the above it is clear that the Hon'ble High Court had observed that once an application to CBI& RC has been made there is no need to come before the Hon'ble Court if there are multiple Bills of Entry filed by the petitioner (Applicant). It is seen from the Reply dated 0....
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....f after the expiry of such period for the registration of each such insecticide.]" 17. Then, Section 17(1)(c) of the Insecticides Act reads as below: "17. Prohibition of import and manufacture of certain insecticides. (1) No person shall, himself or by any person on his behalf, import or manufacture- (a) ..... (b) ..... (c) any insecticide except in accordance with the conditions on which it was registered;" 18. The term "insecticide" has been defined under Section 3(e) of the Insecticides Act. It reads as below: "3. Definitions. In this Act, unless the context otherwise requires, (a) ..... (b) ..... (c) ..... (d) ..... (e) "Insecticide" means- (i) any substance specified in the Schedule; or (ii) such other substances (including fungicides and weedicides) as the Central Government may, after consultation with the Board, by notification in the Official Gazette, include in the Schedule from time to time; or (iii) any preparation containing any one or more of such substances;" 19. It is an admitted fact, Ethephon is a scheduled commodity under the Insecticides Act. Ther....
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....ct. 24. As to the third submission advanced by learned counsel for the petitioner, that Ethephon is exempt from the operation of Insecticides Act, Section 38 of the Insecticides Act reads as below : "38. Exemption. - (1) Nothing in this Act shall apply to - (a) the use of any insecticide by any person for his own household purposes or for kitchen garden or in respect of any land under his cultivation; (b) any substance specified or included in the Schedule or any preparation containing any one or more such substances, if such substance or preparation is intended for purposes other than preventing, destroying, repelling or mitigating any insects, rodents, fungi, weeds and other forms of plant of animal life not useful to human beings." 25. First, by virtue of Section 38(1)(a) the Insecticides Act does not apply to household insecticides or garden insecticides or such insecticides that may be used with respect to land under a persons' cultivation. Second, by virtue of Section 38(1)(b), the provisions of the Insecticides Act would not apply to any scheduled commodity or any other commodity containing the scheduled commodity if the ....
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....ct that such life form may itself be perceived to be useless or non-essential to human existence. The existence of such interaction, or the perception of its uselessness to human beings or its invisibility to the naked eye would not militate against its inclusion in the list of insecticides whose import and manufacture must be regulated under the Insecticides Act. 30. Though couched in a single sub-Section, Section 38(1)(b) of the Insecticides Act, beautifully encapsulates the ancient Indian tenet "Vasudhaiva Kutumbakam". The world we live in, is shared and it belongs to one family i.e. human beings share it will all life forms - plant and animal. Just as one may never look to do anything, even inadvertently, that may unduly harm a member of his family howsoever far removed (in degree and distance) the latter may be located, so also human beings (as a species), may not employ insecticides that may cause specified harms to another species of either plant or animal life forms, since we share our wonderful planet with them, even though we may not perceive a direct or visible interaction or inter-dependency with them. So even a simple fungus or an algae, is an important member....
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....he operation of the Insecticides Act. 34. Seen in that light, it would be premature for the writ Court to reach a fact conclusion whether Ethephon is an insecticide that may not cause any of the specified harm to any form of plant or animal life, generally. Neither the Court is an expert in the science of chemistry or environment, nor it has any expert jurisprudential material available to it as may safely lead it to the conclusion that import and/or manufacture of Ethephon may not cause the effect of preventing or destroying or repelling or mitigating any insect or rodent or fungi or weed or any other form of plant or animal life. 35. A fact enquiry would be required to be conducted before the contention being canvassed by the learned counsel for the petitioner may be accepted. That consideration has become necessary in the face of the claim of exemption set up by the petitioner. That claim must arise and be tested before the factfinding authority i.e., the statutory authorities. 36. As early as in Commissioner of Income Tax, Madras vs. R. Venkataswamy Naidu, AIR 1956 SC 522, it came to be settled that the burden to establish an exemption rests on the pe....
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....al with the issue of claim of exemption being made by the petitioner would be the quasi-judicial authority under the Act. At present, the proceedings initiated under Section 124 of the Act are pending. Pending those proceedings, we leave the issue of exemption completely open to be contested in those proceedings, solely on the strength of material that may be produced before that authority. 39. Here it may be noted, issuance of notification under other enactments such as the Order dated 20.07.2020 issued by the Food Safety and Standards Authority of India (FSSAI in short) is extraneous to test if Ethephon is exempt under the Insecticides Act or is not prohibited under the Act. Merely because Ethephon is a permitted ripening agent under the Food Safety and Standards Act, 2006 may only lead to an inference that per se, it is not harmful to human health, when used as a ripening agent. Many insecticides are not considered harmful to humans. Yet, they are harmful to other forms of plant and animal life. Precisely, for that reason, the general exemption granted under Section 38(1)(b) of the Insecticides Act is restricted to such insecticides only as may not cause any of the spec....
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....djudicating authority was whether the imported goods were exempted under Section 38(1)(b) of the Insecticide Act 1968. As only an exemption under the said Act would take away the requirement of Registration under the Insecticide Act for the purposes of import, trade or manufacture the said Insecticide. In case any imports are being done in absence of the registration of the said insecticide which are required to be registered under the Insecticide Act 1968, the goods so imported would be prohibited for the purposes of the provisions of the Customs Act, 1962, read with the Insecticide Act, 1968. It has been also observed that the various orders issued by the FSSAI would remain extraneous to the dispute on hand. 5.9 It is seen that Show Cause Notice in para 5 has brought out that the administrative officer of CIB&RC and the section officer of CIB&RC vide their letter dtd. 08.07.21 and 16,07.2021 respectively have informed that the applicant has never applied for the Registration of any product to the secretariat of CIB&RC nor any certificate of Registration has been issued to them, Also CIB & RC letter dated 8.07.2021 had informed DRI that "No threshold limit is defined for ....
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....imports done at Nhava Sheva Commissionerate, in the W.P No 11198 of 2019, wherein Hon'ble High Court was pleased to pronounce similar orders as in the W.P No. (L) No 1477 of 2018. In the said case the Hon'ble High Court had ordered the petitioner to make an application for issuance of the import permit within one week. The said order was issued on the basis of the submission of the Government Counsel that the no consignment will be allowed to be cleared without submission of the Registration Certificate or the import permit. Though as discussed in foregoing paras no such registration or Import permit was ever applied by the Applicant. 5.12 In light of the above facts, the observation of the Adjudicating Authority in para 35 to 40 of the Impugned order gains significance wherein it is observed that the Appellant had intentionally and knowing mis-declared the goods imported by them. In light of the above legal and factual matrix, I find that the observations of the adjudicating authority are legal and proper and does not require to be interfered with and accordingly the goods are rightly held to be liable for confiscation under Section 111 of the Customs Act 1962. ....
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....Appellant Sh. Sheel Kumar Sethi CHA, M/s King Travels have contested the imposition of penalty under Section 112(a)(i) and 114AA of the Customs Act 1962 on the grounds of merits of free importability of the goods. They have further contended that the Appellant is a CHA and in absence of any finding that the importer was directly involved in the omission and commission of the any act which rendered the goods liable for confiscation, the penalty under section 112(a) (i) of the Act is misplaced. Further Section 114AA is applicable only for exports and not for imports and the adjudicating authority has failed to identify and specify the false documents etc., which have been knowingly presented or signed by the appellant. 5.18 I observe that the impugned order in para 59& 60 has discussed the statement dated 06.07.2021 of Sh. Sheel Kumar Sethi, which was recorded during investigation, wherein he has inter alia stated that he knew the composition of the goods sought to be imported, and had also informed to Shr. Nagpal that the said goods are restricted and cannot be imported. He was also aware that M/s Gold Ripe International had received a notice dated 21.06.2021 from CIB&RC. T....
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....lator as it promotes fruit coloration, leaf, flower, or fruit abscission, fruit ripening, fruit yield, germination, and flower induction. The color of oranges, lemons, and grapefruits often remains green when they are ripe, but consumers do not buy them because of their external green appearance. The application of ethylene to these green citrus fruit results in the development of desirable citrus color. The use of ethephon varies with plant species, chemical concentration, and time of application as it regulates the phases of plant growth and development by application to various growth sites. It is applied to plants in the form of a mist or spray. After application, ethephon penetrates through stomata and cuticles to the apoplast where, at pH of 5 and above, it decomposes to form ethylene, chloride, and phosphate. Ethylene is a naturally occurring plant hormone that is produced by many fruits and vegetables. It affects the physiological processes in plants and initiates the ripening process when internal concentrations increase from 0.1 to 1.0 ppm (parts per million). Externally applied ethylene can also initiate the ripening process. According to the Ministry of Agricul....
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....gnificant increase in body weight gain after treating adolescent female rats with ethephon for a short period of 20 days. The mean number of hepatocytes and Kupffer cells of control group in a unit area [Table 1] was in accordance with the findings of Gershbein and Elias and Hase and Brim. No study has commented on effect of ethephon on liver cells. Areas around the portal triads and central vein showed shrunken hepatocytes with pyknotic nucleus and pale staining cytoplasm. At places, dying hepatocytes appeared to be what is known as the acidophilic bodies or the Councilman bodies. These observations are in consistent with the findings of Hussein et al. At places, areas of hemorrhage were seen disrupting the normal parenchyma which was replaced by large bloodfilled spaces. This is in consistent with findings of Yazar and Baydan who administered oral ethephon to mice for 45 days and demonstrated microscopic changes in terms of hyperemic areas. According to Miller and Van and Troup, the only sign of toxicity in mice treated with ethephon was the inhibition in plasma and red blood cell cholinesterase. Similar cholinergic effects were also noted by B....
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....ity should not be consumed. Wash fruits and vegetables thoroughly with water before consuming. Peeling of fruits before consumption and vegetables before cooking should be promoted ⮚ Ensure the quality of fruits and vegetables by sending them to voluntary testing laboratories ⮚ Efforts of policy makers are required to reduce the use of artificial ripeners. Residue data sheets of United States have summarized the residues found on a variety of commodities and their by-products in the USA. They have given the preharvest intervals, concentration factors, and application rates.[27] We should work on those fact sheets to limit the use of ethephon and other artificial ripening agents. Safe limit of residue data should be worked on according to the Indian environment and the use can be limited accordingly ⮚ Organic farming is the best solution, so it should be adopted and promoted so that our immune boosters remain boosters not toxicants." 4.4 From the above it is evident that the goods under importation which have active ingredient "ethepon" is have noticeable harmful effects on the rats examined in the above research paper. It has harmf....
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....inserts the following Policy condition as Policy Condition no. 3 under Chapter 38 of ITC (HS), 2012 - Schedule - 1 (Import Policy): "3. Under Section [9] of the Insecticides Act, 1968 all chemicals intended to be used as insecticides, rodenticides, fungicides, herbicides etc. [referred to as 'insecticides' under the Act] require mandatory registration for import. In cases, where the 'insecticide' is imported for non-insecticidal purpose, an import permit is necessary from the Registration Committee under the Department of Agriculture and Cooperation. The Registration Committee while granting registration or a permit for import of an insecticide spells out the conditions for import which inter alia, may include reference to the source of import. No 'insecticide' can be imported from a source other than that specified on the certificate of registration or the permit, as the case may be. In addition, the Registration Committee may issue regulatory guidelines from time to time with respect to safety, efficacy, quality etc. which warrant full compliance from importers." 2. Effect of this Notification: The policy provisions under the Insecticides Act, 1968 for import of....
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....ree days. 12.1 It is made clear that once the information is furnished, respondent No. 3/CIB&RC will consider the same and issue the import permit to the petitioners. 12.2 Needless to state, the import permit will be issued at the earliest if the information furnished is found to be genuine. 13. We may also indicate that once the import permit is issued in favour of the petitioners, respondent Nos. 1 and 2, in effect, the customs authorities, will act on the same as per law. 14. We may also indicate that the product that the petitioners have imported goes by the name "ethephon", which, even according to the petitioners, is also referred to as "ethrel". To be noted, the chemical and scientific name of ethephon is "2-chloroethylphosphonic acid". "Ethrel" finds mention in the schedule appended to the 1968 Act. 14.1 Thus, having regard to the provisions of Section 3(e)(i) of the 1968 Act, the imported product will fall within the definition of the term "insecticide". 15. The core issue before the Court was as to whether, having regard to the provisions of Section 38(1)(b) of the 1968 Act (which is an exemption provision), the other ....
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....efore, as indicated hereinabove, since the petitioners have agreed to furnish the necessary information, in this case the issue as to whether information was required to be given or not, has become academic. 19. Accordingly, once an import permit is issued by respondent No. 3/CIB&RC, the petitioners will be at liberty to approach the customs authorities. The customs authorities, as alluded to above, will, thereafter, act as per law. 20. Before we conclude, we would like that respondent No. 4/FSSAI to consider framing a regime whereby fruits and/or vegetables which are ripened artificially with the use of ethylene gas, which in turn is produced through use of ethephon powder, as in this case, or other artificial ripeners should have the necessary indication placed on it. 20.1 We would, thus, like respondent No. 4/FSSAI to draw up a broad framework which takes into account all kinds of artificial ripeners so that the consumer of the fruit and/or vegetable is made aware of the fact that the product in issue has been ripened artificially." 4.8 Hon'ble Telangana High Court order dated 19.01.2022 in WP (PIL) No 176/2020 has held as follows: "10. The....
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.... it is clarified that ethephon in powder form may also be used as a source of ethylene gas provided that it shall be packed in sachets and these sachets containing ethephon in powder form shall not come in direct contact with fruits. 3. A detailed guidance document on artificial ripening of fruits has also been prepared and is now available on FSSAI website. 4. This issues with the approval of Competent Authority in exercise of the power vested under Section 16(5) of Food Safety and Standards Act, 2006. (P.Karthikeyan) Assistant Director (Regulations/Codex) To 1. The Commissioners of Food Safety of all States/UTS 2. All Authorized Officers, FSSAI 3. All Central Designated Officers, FSSAI Copy to: 1. PPS to Chairperson, FSSAI 2. PS to CEO,FSSAI 3. CMSO,FSSAI 4. Advisor (Regulations), FSSAI 5. Advisor (QA/Labs), FSSAI 6. IT Division, FSSAI with request to upload on website" 11. The Guideline Note No.4 of 2018 issued by the FSSAI has laid down 'Protocol' for use of Ethylene gas from various sources and clause (5) of the aforesaid Note reads as under:- ....
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....ontaining the sachet after 24 hours." 12. Much has been argued before this Court that the Ethephon is a chemical substance and is used as an insecticide across the globe. It also finds place in the Schedule of the Insecticides Act read with Section 3(e) of the aforesaid Act. Reliance has also been placed upon the Rule 10C of the Insecticides Rules, which prohibits sale or storage of insecticides from the same building or place where any articles consumable by human beings are placed. 13. In the present case, Ethephon is not being sold along with fruits and vegetables nor is being stored at the same place along with the fruits, which are kept for ripening. In fact, it is being kept as per the Guidelines framed by FSSAI in small sachets in powder form. The specifications of packing Ethephon provide that it has to be packed in 40-60 micron cellulose membrane paper and it generates Ethylene gas only. Meaning thereby, Ethephon in small pouches are kept to generate Ethylene gas and there is no conflict of statutory provisions as contained in Insecticides Rules or the Food Safety and Standards Act. Similarly, regulated use of Ethephon only for the purpose of generating E....
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....ilarly placed importer that he will provide the information as required for getting the import permit to registration committee and obtain the same. Further we also observe that this argument based is based on the decision in case of Synergies Castings Ltd [2014 (313) ELT 50 (Mad)], wherein following was observed: 3. We have gone through the entire order passed by the Tribunal. In fact, having considered the submission made on behalf of the appellant that as regards Copper Sulphate and Nickel Chloride under import, there was no such requirement to obtain registration certificate or import permit for their import as per EXIM policy, the Tribunal set aside the confiscation in respect of Nickel Chloride and Copper Sulphide as well as penalty imposed thereon. The Tribunal also relied on the Section 38(1)(b) of Insecticides Act, 1968 and held that import of insecticides for non-insecticidal use is not subject to the restrictions contained in the Act. Therefore, we do not find any irregularity in the order passed by the Tribunal in order to interfere with the same. We find that in subsequent decision in case of Shree Pharma [2017 (353) ELT 473 (Mad)], Hon'ble Madras High Cour....
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.... authority that the decision of the Kerala High Court reported in 2013 (290) E.L.T. 330 (Kerala) and the judgment of this Court reported in 2014 (313) E.L.T. 50 (Mad.), is squarely applicable to the facts of this case. 13. The appellant is a proprietary firm involved in the business of trading of pharmaceutical products, substances, organics etc. The appellant firm possessed the import export code, issued by the office of the Director General of Foreign Trade, in No. 040904283 and was also holding a licence under Drugs and Cosmetics Act, 1940. The appellant company imports pharmaceutical products, substances etc., from overseas suppliers like China. On 16-2-2015, the appellant company entered into a sales contract with a Chinese supplier namely, Jiangsu Guotai Intl. Group, for supply of 5000 kgs. of Bronopol 99% Min., under the contracted price of USD 22,500. The appellant company paid part payment for the consignment, to the tune of USD 6750, through his banker, on 5-3-2015. The certificate of analysis was issued by the supplier to the appellant. On 16-3-2015 commercial invoices were raised by the supplier and the goods were shipped from Shanghai Port, China to Chennai on....
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.... apply for granting exemption of the condition, of obtainment of import permit from Registration Committee Central Insecticide Board. Section 38 of the Insecticides Act, 1968, reads as follows :- "38. Exemption. - Nothing in this Act shall apply to - i. ..... ii. ...... (2) .........." So, reading of the aforesaid provision would clearly show that if any substance is imported for non-insecticidal use, the provisions of the Insecticides Act, 1968 will have no application. 16. However, the Notification No. 106/2014/2009-2014, dated 1-1-2015 issued by the Director General of Foreign Trade, reads as follows :- "Subject : Amendment in import policy conditions under ITC (HS) 4 digit code 3808. S.O.(E) : ........." According to the appellant, the aforesaid notification issued by the Director General of Foreign Trade is without any authority of law, has no legal sanctity and therefore the said notification is not binding on the appellant. In support of his contention, he relied upon the order passed by the Kerala High Court in the case of Union of India v. Maliakkal Industrial Enterprises, in a batch of writ petitions,....
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....t, it has been held that the aforesaid notification issued by the Director General of Foreign Trade is a law and not an executive instruction and the import and export is governed under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. 18. Section 2 of the Insecticides Act, 1968, reads as follows :- "2. Application of other laws not barred. - The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force." Therefore, imports are governed by other Acts also and the contention of the appellant that Insecticides Act alone applicable, is not correct. The said contention has also been considered by the Division Bench of the Kerala High Court in the above cited judgment. The appellant, merely submitting a declaration to the end use that the Bronopol will be used for non-insecticidal purpose is not sufficient and therefore exemption under Section 38(1)(b) of the Insecticides Act cannot be applied automatically, to the appellant. The appellant has failed to produce evidence before the authority to establish that the Bronopol will be used for non-insecticidal purpose. In the abs....
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....t finds that the limited scope of consideration is as to whether there exists any 'error apparent on the face of record', to invoke the power of review. 10. As pointed out already, interference of this Court is sought for with reference to the twin-folded plea of discrimination [with reference to the 'product' and also with reference to the 'local manufacturers'] stated as omitted to be considered by the Bench while passing the common verdict on 3-6-2014. It is seen that the plea of discrimination with reference to the 'product' and other more toxic materials was taken note of by the Court in Paragraphs 46 to 53 and it was finally observed in paragraph 53 that the plea of discrimination, 'prima facie', appeared to be untenable. But the same was left open, to be raised in a properly constituted proceedings. The question raised and as dealt with in Paragraph 46 [with reference to Ground E of the Writ Petition No. 4168 of 2007 forming the subject matter of Writ Appeal 617 of 2012] and the relevant portion of Paragraph 53 are extracted below : "Whether there is hostile discrimination and whether Article 14 is violated? 46. The next question which arises for c....
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....unced on the case set up that there is violation of Article 14 based on the alleged discrimination. We find that there is no denial of the same by the appellants. But, at the same time, we noticed materials which are produced before us including the case based on the various entries in Chapter 38. There are also the conditions which are attached to the policy. Even though prima facie we would think that, in view of the requirement attached to the import of the various insecticides and categories of 'other' as already noted that, the insecticides to be imported must be registered and therefore the plea of discrimination appears rather untenable, we would not like to pronounce on the same. We would rather leave it open so that, if advised, in a properly constituted proceedings this matter can be considered. Accordingly we leave it open." 11. Coming to the alleged discrimination with reference to the 'Importers and Local manufacturers', the observations as contained in Paragraph 45 are relevant, which read as follows : "45. ................With regard to the plea of discrimination the attempt made by the learned counsel Sri. Gopinath Menon, and Sri. Paul learned coun....
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....appeal' and not by review petition. It has been made clear by the Apex Court on many an occasion, that the power of review is not to be misconstrued or misunderstood as a substitute for appeal. We find support from the ruling rendered by the Apex Court in Meera Bhanja v. Nirmala Kumari Choudhary [AIR 1995 SC 455]. In view of the fact that rights and liberties of the review petitioners/importers is left open by the Bench, by way of appropriate proceedings, this Court does not intend to say anything more in this regard and it is open for them to pursue the exercise in accordance with law. 13. With regard to the maintainability of the review petition, the learned counsel for the review petitioners submits that, even though the verdict dated 3-6-2014 passed by the Bench was a common one, in five different appeals, the petitioners herein were parties only to three appeals [W.A. Nos. 617 and 648 of 2012 and 1653 of 2013]. The review petitions have been filed only in respect of the appeals in which the review petitioners were parties and since they were not parties to the proceedings in the other appeals, they need not challenge the verdicts in those cases and hence that the verd....
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....was involved in both actions. 22. Though Section 11 of the Code of Civil Procedure consecrates this common law principle as a statutory mandate, it incontrovertibly applies to public law remedies, too, apart from civil disputes. The Courts have held that even the public interest litigation falls within its mischief and its enforcement demands vigil. 23. In Sheoparsan Singh v. Ramnandan Prasad Singh, (1916) 3 LW 544 the Privy Council has observed that res judicata is an ancient doctrine of universal application and permeates every civilized system of jurisprudence. This doctrine encapsulates the basic principle in all judicial systems which provide that an earlier adjudication is conclusive on the same subject-matter between the same parties. Recently, quoting Sheoparsan Singh with approval, the Supreme Court in Sri Gangai Vinayagar Temple v. Meenakshi Ammal, (2015) 3 SCC 624, at page 648 has observed that the raison d'etre and public policy on which res judicata is predicated is that the party who has raised any aspect in a litigation and has had an issue cast thereon, has lead evidence in that regard, and has argued on the point, remains bound by the curial concl....
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....ner has lost the battle, by virtue of the interference made by the Division Bench, the petitioner is all the more liable to satisfy the liability, as the principle of "actus curiae neminem gravabit" (an act of the Court shall prejudice no man) is attracted. 16. The learned counsel for the review petitioners submits that though the liability initially mulcted upon by the Commissioner was to a nominal extent, it has now been sought to be enhanced by filing an appeal at the instance of the Department and hence the grievance. This Court does not intend to express any opinion with regard to the quantification of the liability, either towards the duty or the penalty, as it is open for the review petitioners to have the same challenged by way of appropriate proceedings in accordance with law." 4.11 Hon'ble Gujarat High Court has in case of All India Ceramic Glaze And Glass Frit (Mixture) Manufacture [2019 (367) E.L.T. 107 (Guj.)] observed as follows: "20. Having noticed such statutory provisions, let us examine how they apply to the facts of the case. We may recall the petitioners have challenged the notification dated 7-4-2006 issued by the Government of India, Minis....
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....under the Ministry of Agriculture is only assigned the task of processing applications by the prospective importers for granting the import permit. There is nothing either unreasonable in this Act or impermissible in the statute for the Government of India so to do. Under the Act of 1992, the Government of India has ample powers to regulate the import policy. While doing so, it is either open for the Government of India to prohibit or restrict import of a certain item or subject it to regulatory measures. In the present case, Government of India was of the opinion that looking to the toxic nature of the substance, it was necessary to regulate its import. It may be that such regulation is provided for import of the substance for non-insecticidal purposes. However, the philosophy behind such regulatory measure cannot be faulted. We have taken detail note of Government affidavit filed before us to point out that boric acid has toxic property. Its misuse and/or mishandling can cause extensive damage to human beings, plants, animals and environment. Even when therefore, such boric acid is imported for non-insecticidal purposes, it is important that its handling, storage and usage is pro....
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....on. As is well-known, even subordinate legislation carries a presumption of constitutionality. It is for one who propounds the same as being arbitrary, unreasonable or in any other manner unconstitutional to establish the same through necessary facts. We have noted the provisions contained in the Act of 1992. We also noticed the provisions contained in the Insecticides Act, 1968. We do not find that the policy of the Government of India to ensure that imports of boric acid for non-insecticidal purposes also needs to be regulated, is in any manner unreasonable, arbitrary or discriminatory. 25. We may recall that similar issue had come up before Kerala High Court in case of Feroke Boards Ltd. and Others (supra), in which following observations were made : "34. Under Section 38 of the Act what is provided is that when insecticides are intended to be used for non-insecticidal purposes, the provisions in the Act will not apply. It is certainly open to the Government to put in place sufficient safeguards to ensure that actually only insecticides which are genuinely intended for non-insecticidal purposes are taken out of the purview of the Act and the restrictions and co....
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....use it for non-insecticidal purposes the law may catch up with him. But that is not to say that if the Government thought it fit to put in place the safeguards that only those who are able to show that they have an intention to import boric acid for non-insecticidal purposes with certainty proved by objective criteria supported by documentary evidence and facts and figures should be allowed to import the court should strike it down." 26. We are conscious that in the review petition filed by the importers, Kerala High Court had left the question of validity of the notification on the ground of discrimination open. 27. We have noticed that under Chapter [Heading] 2810 in Schedule-I to the Import policy also a policy condition is mentioned which requires that where insecticides is imported for non-insecticidal purposes and the import permit is necessary from Central Insecticides Board and Registration Committee under the department of Agriculture. 28. We also do not find any grounds to accept factual mala fide. It may be that in this particular case, the Government of India was activated into action on the representations made by the local manufacturers of b....
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....elopment and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods or services or technology: Provided that the provisions of this sub-section shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies. (3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. (4) Without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods sha....
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....d Industry, Department of Commerce, states that the DGFT is an agent of the Central Government and attached office to it. Further, clause (2) of Article 77 provides that validity of an order or instrument made or executed in the name of the President, authenticated in the manner specified in the Rules made by the President, shall not be called in question on the ground that it is not an order or an instrument made or executed by the President. Therefore, the contention of issuance of the impugned notification sans authority, cannot be sustained. 16. FTDR Act vide Section 3(2), as elucidated and examined below, authorises the Central Government to prohibit, restrict or otherwise regulate the import or export of goods, by an order published in the Official Gazette. FTDR Act vide Section 11(1) prohibits imports or exports of goods in contravention of the FTDR Act, the rules and orders made thereunder and the EXIM Policy. Section 5 of the FTDR Act authorizes the Central Government to formulate and announce the EXIM Policy by notification in the Official Gazette. Under Section 11(2) of the FTDR Act, when a person makes or abets or attempts to make any import or export in contra....
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....s or exports would clearly fall within sub-section (2) to Section 3 of the FTDR Act. We are not concerned with the proviso to sub-section (2) in the present case. Sub-section (3) to Section 3 states that where an order is passed under sub-section (2) whereby the import or export of goods is prohibited, restricted or otherwise regulated, the goods in question would be deemed to be prohibited goods under Section 11 of the Customs Act, 1962 and accordingly the provisions of the latter Act would apply. 55. Sub-section (4) to Section 9A of the FTDR Act introduced by Act 25 of 2010 with effect from 27th August 2010, requires some elucidation. The sub-section on one hand states that no permit or licence shall be necessary for imports or exports of goods, nor any goods shall be prohibited from import or export, except as may be required under the FTDR Act, or the rules or orders made thereunder. At the same time, by using the phrase 'without prejudice to anything contained in any other law, rule, regulation, notification or order', it protects the operation of the other law, rule, regulation, notification or order to the extent that they do not directly or indirectly deal with the....
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....' and incorporated in the domestic legislation, i.e. the FTDR Act. The FTDR Act does not legislate and transform Article XI of the GATT-1994. As noticed above, Section 3 of the FTDR Act empowers and authorises the Central Government, i.e. the Union of India to frame policy, rules or regulations for import or export of goods. The policy is framed under Section 5 of the Act, which reads as under : "5. Foreign Trade Policy. - The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the foreign trade policy and may also, in like manner, amend that policy : Provided that the Central Government may direct that, in respect of the Special Economic Zones, the foreign trade policy shall apply to the goods, services and technology with such exceptions, modifications and adaptations, as may be specified by it by notification in the Official Gazette." Thus, the Central Government i.e. the Union of India has been given the necessary discretion and election with regard to framing of policies for import and export of goods, services and technology. Therefore, implementation of GATT-1994, including Article XI, is left....
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....4 is in derogation of the provisions of Insecticide Act, 1968. We also observe that appellant have themselves undertaken to apply and obtain the import permit before the Hon'ble Bombay High Court. Impugned order returns a categorical finding that contrary to the undertaking given before the Hon'ble High Court, the appellants had never obtained any import permit. We also note that appellant have in their appeal sought to mislead in this regard by stating that Hon'ble Bombay High Court has directed that they need not file petition at time of every importation to mean that condition of import permit was not required in respect of imports subsequently made under the same contract. Direction of High Court against filing of repetitive petition could not mean that condition to make imports against the import permit has been waived off. As goods have been imported contrary to the prescriptions as per this Notification, the goods have been rightly held liable to confiscation under Section 111 (d), (f) & (m) of the Customs Act, 1962. 4.17 In case of Raj Grow Impex LLP [2021 (377) E.L.T. 145 (S.C.)] Hon'ble Supreme court has held as follows: "Whether the goods in question are of '....
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.... Sections 2(33), 11(1) and 111(d) of the Customs Act. These relevant provisions read as under :- Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 "3. Powers to make provisions relating to imports and exports. - (1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods or services or technology : Provided that the provisions of this sub-section shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies. (3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods the import or....
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.... Customs Act; and all the provisions of the Customs Act shall have effect over these goods and their import accordingly. However, a long deal of arguments has been advanced before us as regards the category in which these goods are to be placed, i.e., whether they are of 'restricted' category or 'prohibited' category. 66. The gravamen of the contentions on the part of the importers, that the subject goods fall in 'restricted' category and not 'prohibited' category, is that the notifications in question placed quantitative restrictions and there had not been any other order or notification prohibiting the import of these goods. The contentions remain baseless and are required to be rejected. 66.1 A bare look at the notifications in question and the findings of this Court in Agricas (supra) make it clear that only the particular restricted quantity of the commodities covered by the said notifications could have been imported, like those upto 1.5 lakh MTs; and that too, under a licence. The Learned ASG has rightly pointed out with reference to the decision in PTR Exports (supra) that an applicant has no vested right to have export or import licence; and granting of l....
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....ct that while Section 111(d) of the Act uses the word "prohibition". Section 3 of the Imports and Exports (Control) Act, 1947, takes in not merely prohibition of imports and exports, it also includes "restrictions or otherwise controlling" all imports and exports. According to him restrictions cannot be considered as prohibition more particularly under the Imports and Exports (Control) Act, 1947, as that statute deals with "restrictions or otherwise controlling" separately from prohibitions. We are not impressed with this argument. What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country" is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in Section 111(d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947 uses three different expressions "prohibiting", "restricting" or "othe....
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....ort of goods are not complied with, it would be considered to be prohibited goods. This would also be clear from Section 11 which empowers the Central Government to prohibit either 'absolutely' or 'subject to such conditions' to be fulfilled before or after clearance, as may be specified in the notification, the import or export of the goods of any specified description. The notification can be issued for the purposes specified in sub-section (2). Hence, prohibition of importation or exportation could be subject to certain prescribed conditions to be fulfilled before or after clearance of goods. If conditions are not fulfilled, it may amount to prohibited goods...." (Emphasis in bold supplied) 67.4 Learned Counsel for the importers have strongly relied upon a 3-Judge Bench decision of this Court in Atul Automations (supra) to submit that therein, the goods imported without authorisation were held to be 'restricted' goods; and the same principle applies to the subject goods when they have been imported without import licence and hence, they cannot be taken as prohibited goods. The submissions have been countered by the ASG that the said decision related to the matt....
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....tricting the imports by quantum has been the availability of excessive stocks and adverse impact on the price obtainable by the farmers of the country. The decision in Atul Automations (supra), by no stretch of imagination, could be considered having any application to the present case. 68. Thus, we have no hesitation in holding that the goods in question, having been imported in contravention of the notifications dated 29-3-2019 and trade notice dated 16-42019; and being of import beyond the permissible quantity and without licence, are 'prohibited goods' for the purpose of the Customs Act. 68.1 The unnecessary and baseless arguments raised on behalf of the importers that the goods in question are of 'restricted' category, with reference to the expression 'restricted' having been used for the purpose of the notifications in question or with reference to the general answers given by DGFT or other provisions of FTDR Act are, therefore, rejected. The goods in question fall in the category of 'prohibited goods'. Whether the goods in question are liable to absolute confiscation? 69. Once it is clear that the goods in question are improperly imported ....
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....by the parties. We may take note of the relevant expositions as follows : 70.1 In the case of Sant Raj (supra), referred to and relied upon by both the sides, this Court dealt with the matter as regards the discretion of Labour Court to award compensation in lieu of reinstatement and observed as under :- "4....Whenever, it is said that something has to be done within the discretion of the authority then that something has to be done according to the rules of reason and justice and not according to private opinion, according to law and not humor. It is to be not arbitrary, vague and fanciful but legal and regular and it must be exercised within the limit to which an honest man to the discharge of his office ought to find himself.... Discretion means sound discretion guided by law. It must be governed by rule, not by humor, it must not be arbitrary, vague and fanciful....." (emphasis in bold supplied) 70.2 In the case of Reliance Airport Developers (supra), this Court, with reference to various pronouncements pertaining to the legal connotations of 'discretion' and governing principles for exercise of discretion observed, inter alia, as under :- ....
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.... requires it to exercise in individual cases. ...... xxx xxx xxx" "15.......Every discretion conferred by statute on a holder of public office must be exercised in furtherance of accomplishment of purpose of the power. The purpose of discretionary decision making under Regulation 17(3) was intended to rehabilitate the disabled drivers to the extent possible and within the abovesaid constraints. The Corporation therefore, cannot act mechanically. The discretion should not be exercised according to whim, caprice or ritual. The discretion should be exercised reasonably and rationally. It should be exercised faithfully and impartially. There should be proper value judgment with fairness and equity.." (Emphasis in bold supplied) 70.4 In the case of Glaxo Smith Kline (supra), this Court expounded on the principles that the Constitutional Courts, even in exercise of their wide jurisdictions, cannot disregard the substantive provisions of statute while observing, inter alia, as under :- "12. Indubitably, the powers of the High Court under Article 226 of the Constitution are wide, but certainly not wider than the plenary powers bestowed on this C....
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....ards the question at hand, we may usefully take note of the relevant decisions cited by Learned Counsel for the parties. However, it may be observed that the decision of the Punjab and Haryana High Court in Horizon Ferro Alloys (supra), dealing with a particular class of goods that were 'restricted' and not 'prohibited', needs no elaboration. 74. On behalf of the appellants, the Learned ASG has relied upon the decision in the case of Garg Woollen Mills to support the contention that the subject goods deserve to be confiscated absolutely. In that case, the Additional Collector of Customs had directed confiscation of goods when it was found that there had been an attempt of fraudulently importing huge quantity of raw material in the name of non-existent units; and serviceable garments were concealed against mutilated garments. That being a case where fraud was involved, the order of absolute confiscation was not interfered with. This Court, inter alia, observed and held as under :- "5. Another contention that was urged by Shri Mahabir Singh was that the Additional Collector, as also the Tribunal, have failed to take into consideration the provisions contained in Sec....
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....on in the bills of entry, the quantity declared was 210 MTs with declared assessable value of Rs. 79,28,444/-. The Commissioner of Customs, Kochi, by his order dated 16-10-2020, made on the request of the importer for release of goods, noted that DGFT notification dated 18-12-2019 had revised the policy for import of peas; further policy conditions as regards minimum import price and annual fiscal quota of Rs. 1.5 lakh MTs were incorporated and the imports were permitted through Calcutta seaport. The importer, who had imported the subject goods after the issue of notifications dated 18-12-2019 and 28-3-2020, filed a writ petition in the High Court seeking provisional release of the subject goods but this prayer for provisional release was declined. The importer filed an intra-Court appeal that was also dismissed. However, the High Court desired that the customs authorities proceed with the adjudication proceedings expeditiously. The Commissioner of Customs, in his order dated 16-10-2020, while considering the request of importer for provisional release, referred to three conditions in the notification dated 18-12-2019 as modified in the notification dated 28-3-2020; and ordered abs....
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....the available stock position of green peas is treated as surplus and declined release and ordered confiscation. The further import according to Customs Commissioner is not needed or alternatively detrimental to the interest of farmers. He has further noted that in his order dated 16-102020 that the importer does not conform to any of the conditions applicable for import of green peas. In our considered view the exercise of above discretion by Customs Commissioner is the question for consideration before the Appellate Tribunal. The Appellate Tribunal on the contrary, as already noted, considered matters not completely germane for appreciating the mode and manner of exercise of authority by the Commissioner of customs, but, however, recorded that the subject goods can be treated as restricted goods and can be released on payment of redemption fine. .... The Tribunal fell in clear error of law. By holding that release of goods is the only option to Customs Commissioner in the case on hand the language of Section 125 of Customs Act is fully liberalised. The reasoning of Tribunal is adopted both by other primary authority/Appellate Tribunal, then Exim policy, notifications are defeated ....
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....steners) became subject to confiscation and it appears that at a later point of time, free import of the item had also been allowed. Be that as it may, what this Court found therein was that the Adjudicating Authority omitted to take into consideration one part of the discretion available for him i.e., of giving an option for redemption with payment of fine in lieu of confiscation and for that reason alone, the matter was remitted. The said decision cannot be read as an authority for the proposition that in every case of confiscation, invariably, the discretion has to be exercised by the Adjudicating Authority to give an option for redemption by payment of fine. In our view, the said decision does not make out any case in favour of the importers. 76.2 In fact, the observations made in Hargovind Das K. Joshi (supra) rather operate against the orders-in-original in the present appeals because therein, the Adjudicating Authority, after finding the goods liable to confiscation, straightaway proceeded as if the option for payment of fine in lieu of confiscation has to be given and did not consider the other part of discretion available with him that the goods could also be conf....
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....ting Authority did not even pause to consider if the other alternative of absolute confiscation was available to it in its discretion as per the first part of Section 125(1) of the Customs Act and proceeded as if it has to give the option of payment of fine in lieu of confiscation. Such exercise of discretion by the Adjudicating Authority was more of assumptive and ritualistic nature rather than of a conscious as also cautious adherence to the applicable principles. The Appellate Authority, on the other hand, has stated various reasons as to why the option of absolute confiscation was the only proper exercise of discretion in the present matter. We find the reasons assigned by the Appellate Authority, particularly in paragraph 54.3 of the order-inappeal dated 24-12-2020 (reproduced in point 'c' of paragraph 38.2 hereinabove) to be fully in accord with the principles of exercise of discretion, as indicated hereinabove and in view of the facts and peculiar circumstances of this case. 81. It needs hardly any elaboration to find that the prohibition involved in the present matters, of not allowing the imports of the commodities in question beyond a particular quantity, was not....
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.... of the Customs Act with recovery of interest under Section 28AB thereof. Moreover, the imported goods were confiscated and redemption fine under Section 125 of the Customs Act was also imposed in lieu of confiscation. While confirming the differential duty and consequent penalty and interest, CESTAT quashed the imposition of redemption fine because the goods were not available for confiscation. In that context, the High Court said that the concept of redemption fine would arise in the event the goods were available and were to be redeemed; and if the goods were not available, there was no question of redemption of goods. The said decision cannot be pressed into service in the present case merely because the said importer M/s. Harihar Collections has been able to obtain release of all the goods after passing of the order-in-original of the Adjudicating Authority dated 28-8-2020 when the same was under challenge. The present one is not a case where the subject goods were not available on the day of passing of the order by the Adjudicating Authority. 84. Hence, on the facts and in the circumstances of the present case as noticed and dilated hereinabove, the discretion could ....
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.... had impugned the said order before this court in CUSAA 155/2018 [2019 (365) E.L.T. 784 (Del.)]. This Court had dismissed the appeal filed by the said Directors. 26. Reference may also be had to Section 112 to the Customs Act which reads as under :- "Section 112. Penalty for improper importation of goods, etc. (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable, (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees whichever is the greater......" 27. Section 112(a) of the Customs Act lays down that any person who in relation to any goods in....
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....blished for use of false and incorrect material, the penalty could be five times the value of the goods. On the other hand penalty for improper importation of goods under Section 112(a) is not to exceed the value of the goods. 33. In the instant case, had the authorities applied Section 114AA, the penalty could have been upto five times the value of the Goods. 34. Reference may also be held to Section 125 of the Customs Act which provides for option to pay fine in lieu of confiscation and stipulates that the fine shall not exceed the market value of the goods confiscated less duty chargeable thereon. 35. In the instant case, the value of the goods imported were 3.13 crores and the redemption fine imposed is Rs. 60 Lakhs which is nearly 19% of the value of the goods and the fine imposed is Rs. 15 Lakhs on each of the appellants which translates to about 4.75% (totalling to 9.5%) of the value of the goods. 36. As we have held the confiscation of the goods under Section 111 and imposition of penalty under Section 112(a) of the Act are on a strict liability principal, the question of law "Did the Tribunal fall into error in concluding that t....
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....port permit from the Ministry of Agriculture and Farmers Welfare (Department of Agriculture, Cooperation & Parmers Welfare), Directorate of Plant protection, Quarantine & Storage N.H IV Faridabad (Haryana). I have gone through the provisions of the Customs Broker Licensing Regulations, 2018 (herein-after referred to as "CBLR, 2018") wherein duties of a Customs Broker have been laid down under rule 10. The relevant provisions are reproduced below- "Rule-10- d. advise his client to comply with the provisions of the Act, other allied Acts and the rules and regulations thereof, and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be;" From the above provisions, it is ample clear that if he was in knowledge that the gods being imported by M/s Goldripe International Pvt. Limited under BOE No. 4477470 dated 28.06.2021 were restricted goods and the importer was not agreed with him, he should have reported the matter to the Deputy Commissioner of Customs or Assistant Commissioner of Customs. In my view, he not only failed to comply with his duties provided un....
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....In case of Bhalinder Singh Mann [2024 (389) E.L.T. 256 (Tri. - Del.)] following was observed: 32. The facts of the case are clear Shri Atal Bhushan Bhatt was the Manager of Shri B.S. Mann during the relevant period and in that capacity he had obtained the documents pertaining to the importer of the disputed consignment and also saw the samples of the goods which are actually being imported. During cross-examination by Shri B.S. Mann, before the Commissioner he confirmed that he had received the samples of the goods imported through Shri Rohit Sharma and that he had shown them to Shri B.S. Mann. Under such circumstances, it cannot be said that either Shri Bhatt or Shri B.S. Mann was not aware of the goods which were being actually imported. On examination by the SIIB the goods which are imported were found to be the glass chatons while the Bill of Entry was filed for the importer glass beads was of the invoice and packing list all showed the glass beads. In fact, 90% of the imported goods were glass chatons. This is not a case where the CHA had, merely based on the documents produced by the importer, filed the Bill of Entry. Had such been the case then the CHA would have ha....
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....e no hesitation in finding that the Bill of Entry filed knowingly mis-declaring the nature of goods. 35. In view of above, we find that the penalty under Section 114AA imposed on Shri B.S. Mann needs to be sustained. In view of above, we uphold the impugned order insofar as it pertains Shri B.S. Mann and reject his appeal. 4.24 Appellants have raised a preliminary objection stating that the order in original has been passed beyond the time limit prescribed for adjudication of the show cause notice and hence is bad in law. We do not find any merits in the submission made. A constitutional bench (five judges) of Hon'ble Supreme Court has in case of High Court Bar Association Allahabad v. State Of Uttar Pradesh & Ors [2024 LiveLaw (SC) 177][Order dated 29.02.2024 in Criminal Appeal No.3589 OF 2023] observed as follows: "VIII. Directions issued by the constitutional Courts to decide pending cases in a time-bound manner 27. The net effect of the directions issued in paragraphs 36 and 37 of Asian Resurfacing1 is that the petition in which the High Court has granted a stay of the proceedings of the trial, must be decided within a maximum period of six months.....
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....t is too well known to merit illustration at our hands. In many places, requisite number of courts are not available. In some places, frequent strikes by members of the bar interferes with the work schedules. In short, it is not possible in the very nature of things and present-day circumstances to draw a time-limit beyond which a criminal proceeding will not be allowed to go. Even in the USA, the Supreme Court has refused to draw such a line. Except for the Patna Full Bench decision under appeal, no other decision of any High Court in this country taking such a view has been brought to our notice. Nor, to our knowledge, in United Kingdom. Wherever a complaint of infringement of right to speedy trial is made the court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period. In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays to....
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....provide for automatic vacation of the order of stay and the disposal of all cases in which a stay has been granted on a day-to-day basis virtually amount to judicial legislation. The jurisdiction of this Court cannot be exercised to make such a judicial legislation. Only the legislature can provide that cases of a particular category should be decided within a specific time. There are many statutes which incorporate such provisions. However, all such provisions are usually held to be directory. 29. Ideally, the cases in which the stay of proceedings of the civil/criminal trials is granted should be disposed of expeditiously by the High Courts. However, we do not live in an ideal world. A judicial notice will have to be taken of the fact that except High Courts of smaller strength having jurisdiction over smaller States, each High Court is flooded with petitions under Article 227 of the Constitution of India for challenging the interim orders passed in civil and criminal proceedings, the petitions under Section 482 of the Cr.PC for challenging the orders passed in the criminal proceedings and petitions filed in the exercise of revisional jurisdiction under the CPC and the C....
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....es. There is a provision in the Code of Criminal Procedure, 1973, in the form of Section 309, which requires criminal cases to be heard on a dayto-day basis once the recording of evidence commences. The same Section provides that in case of certain serious offences against women, the cases must be decided within two months of filing the charge sheet. Unfortunately, our Criminal Courts are not in a position to implement the said provision. Apart from dealing with huge arrears, our Trial Courts face the challenge of dealing with a large number of cases made time-bound by our constitutional Courts. Therefore, in the ordinary course, the constitutional Courts should not exercise the power to direct the disposal of a case before any District or Trial Court within a time span. In many cases, while rejecting a bail petition, a time limit is fixed for disposal of trial on the ground that the petitioner has undergone incarceration for a long time without realising that the concerned trial Court may have many pending cases where the accused are in jail for a longer period. The same logic will apply to the cases pending before the High Courts. When we exercise such power of directing High Cou....