TaxTMI 
TaxTMI 
2026 (1) TMI 404
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....ellant is justified in availing exemption of customs duty under Notification No. 96/2008-Cus dated 13.08.2008 [the 2008 Exemption Notification] on import of gold dore bars from Tanzania in terms of the Import License dated 16.09.2021 issued by the Directorate General of Foreign Trade [DGFT] permitting imports subject to Notification No. 12/2012-Cus dated 17.03.2012 [the 2012 Notification] . 3. In the Doha Ministerial Order of the World Trade Conference held in 2001, the member countries, including India, committed to consider providing duty free, quota free market access for Least Developed Countries products and to consider additional measures to improve market excess to such countries. In the Hong Kong Ministerial Declaration held in 2005, the World Trade Organisation countries agreed to provide duty free and quota free market access on a lasting basis on all products originating from Least Developed Countries. The Government of India, in 2008, extended duty free tariff preference scheme for the Least Developed Countries. 4. Accordingly, the 2008 Exemption Notification was issued on 13.08.2008 in exercise of the powers conferred by section 25(1) of the Customs Act. It exemp....
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.... 95%. The Conditions contained in the License are as follows: 2. CONDITION SHEET 1 The licence is issued with Actual user conditions besides other usual conditions of Import Authorization 2 The import is subject to Custom Notification no. 12/2012 dated 17.03.2012 and RBI notifications issued from time to time 3 The license is issued to the applicant as per the minutes of the EFC meeting No. 04-AM22 dated 27.08.2021 uploaded on the DGFT website 8. The appellant filed Bills of Entry dated 12.09.2023 and 15.09.2023 for import of gold dore bars from Tanzania and claimed exemption of duty under the 2008 Exemption Notification. The appellant also filed the country of origin certificate. Investigation was carried out and it was revealed that the appellant had wrongly claimed exemption under the 2008 Exemption Notification since the Condition of the Import License issued by the DGFT specifically mentioned that the goods shall be cleared under the 2012 Notification later superseded by the 2017 Notification. 9. The appellant received a Pre-Notice Consultation Letter dated 09.04.2024 alleging violation of the Import License Conditions. The appellant subm....
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....itions will make the importer ineligible to import under the said licenses, as the goods are in 'Restricted' category of imports, and (ii) pays Customs Duties as mentioned in the said Notification as mentioned in the license. 23. I find that the importer has filed bill of entry claiming wrong exemption from whole of the Customs Duties and Agriculture Infrastructure and Development Cess (AIDC) under Notification No. 96/2008-Cus dt 13.08.2008, though the conditions of their Import license issued by DGFT specifically mentioned that goods shall be cleared under Notification No. 12/2012-Cus dated 17.03.2012 (later superseded by the Notification No 50/2017 - Cus dated 30.06.2017). Non-payment of duty as prescribed in the said notification which is mentioned as a condition for import in the license makes the goods ineligible to be imported against the said license. Thus, the importer has wrongly used the notification no. 96/2008-Cus dt 13.08.2008 for the import of impugned goods as the importer can only claim exemption notification at a time in respect of a component of Customs Duty in consonance with the license and availing notification No. 12/2012-Cus dated 17.03.2012....
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....ime of import of "Gold Dore Bars" even if the goods imported from these least developed countries. ***** 28. Further, I find that the import has short paid duty on the impugned goods imported by them by taking recourse to wrong availment of Notification No. 96/2008-Cus dated 13.08.2008 and violating conditions laid down under license, resulting into short payment of the legitimate duty payable in respect of the subject goods. In view of the above, I hold that this violation of the license condition has rendered the goods liable for confiscation under section 111(d) and 111(o) of the Customs Act, 1962. ***** 32. I find that in the regime of self-assessment it is the assessee himself who has to ensure correct computation of duty of imported goods and as per Section 17 of the Act, an importer is himself required to determine duty liability on the goods imported by him and discharge the same in the authorised manner. The importer is a regular importer and hence the plea that he did not know the provisions also does not come to his rescue. The importer by the act of misdeclaration of value has rendered themselves liable to penalty under section 114A o....
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....order is inconsistent with the governing policy framework; (vi) There is no express bar in the law preventing simultaneous availment of benefits under two Exemption Notifications. Denial of such benefit is contrary to the settled law. In the absence of any specific Conditions restricting applicability of another exemption, simultaneous benefits available cannot be denied; (vii) Denying the benefit of the 2008 Exemption Notification violates article 51(c) of the Constitution and International obligations of India, including under GATT 1994 and the DFTP Scheme. Tariff and non-tariff barriers inconsistent with international treaties cannot be imposed; (viii) Interest under section 28AA of the Customs Act is not liable to be paid; and (ix) Penalty under section 112 is liable to be set aside. 14. Shri Ranjan Prakash and Shri Nikhil Mohan Goyal learned authorized representatives appearing for the department, however, supported the impugned order and made the following submissions: (i) The DGFT issued the Import License to the appellant for importing gold dore bars with explicit Condition that imports must comply with the 2012 Notification w....
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....e 2012 Notification as superseded by the 2017 Notification, but under the 2008 Exemption Notification the appellant was required to pay NIL basic customs duty and AIDC. 18. Gold dore bards are restricted items under the Foreign Trade Policy and can be imported under a License issued by the DGFT. The appellant was issued a License by the DGFT on 16.09.2021 permitting the appellant to import gold dore bars. The License contained a Condition that the import of gold dore bars is subject to the 2012 Notification. 19. The impugned order passed by the Principal Commissioner holds that it was obligatory on the part of the appellant to have paid customs duty contemplated under the 2012 Notification and it was not open to the appellant to pay NIL customs duty by taking resort to the 2008 Exemption Notification. It is for this reason that the customs duty in terms of the 2012 Notification, as superseded by the 2017 Notification, has been demanded from the appellant and penalty has been imposed under section 112(a)(i) of the Customs Act as the gold dore bars were found to be liable to confiscation. 20. The issue, therefore, that arises for consideration is whether the appellant could ....
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.... Notification. 25. Learned authorized representative appearing for the department has placed reliance upon the judgment of the Delhi High Court in Tasha Gold. In the said case, it was found as a fact that the gold dore bars that had been imported did not meet the weight specification as required under the 2012 Notification as the gold dore bars had gold content of more than 95%. It is in this context that the Delhi High Court observed that the benefit of the 2008 Exemption Notification could not have been availed of since the description of goods in the 2012 Notification was gold dore bar having gold content not exceeding 95%. 26. It is, therefore, not possible to accept the contention advanced by the learned authorized representative appearing for the department that since gold dore bars were restricted items under the Foreign Trade Policy and could be imported only under a License issued by the DGFT, the appellant had necessarily to pay customs duty under the 2012 Notification. 27. Learned counsel for the appellant also submitted that that as the Import License issued to the appellant by the DGFT is valid and subsisting and the DGFT had not raised any allegation of viola....
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....lly impermissible for the customs authorities to either ignore the MEIS certificate or deprive a holder thereof of benefits that could be claimed under that scheme absent any adjudication or declaration of invalidity being rendered by the DGFT in exercise of powers conferred by either Rules 8, 9 or 10 of the FTDR Rules. The customs authorities cannot be recognised to have the power or the authority to either question or go behind an instrument issued under the FTDR in law. 106. Taking any other view would result in us recognizing a parallel or a contemporaneous power inhering in two separate sets of authorities with respect to the same subject. That clearly is not the position which emerges from a reading of Section 28AAA. Quite apart from the deleterious effect which may ensue if such a position were countenanced, in our considered opinion, if the validity of an instrument issued under the FTDR Act were to be doubted on the basis of it having been obtained by collusion, wilful misstatement or concealment of facts, any action under Section 28AAA would have to be preceded by the competent authority under the FTDR Act having come to the conclusion that the instrument had com....
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....essarily be preceded by the competent authority under the FTDR Act having found that the certificate or scrip had been illegally obtained. We have already held that the reference to a proper officer in Section 28AAA is for the limited purpose of ensuring that a certificate wrongly obtained under the Customs Act could also be evaluated on parameters specified in that provision. However, the said stipulation cannot be construed as conferring authority on the proper officer to question the validity of a certificate or scrip referable to the FTDR Act." (emphasis supplied) 30. It needs to be noted that in Titan Medical, which was considered by the Delhi High Court in Designco, the Supreme Court observed as follows: "13. As regards the contention that the appellants were not entitled to the benefit of the exemption notification as they had misrepresented to the licensing authority, it was fairly admitted that there was no requirement for issuance of a licence that an applicant set out the quantity or value of the indigenous components which would be used in the manufacture. Undoubtedly, while applying for a licence, the appellants set out the components they would use and ....