Chaini Parwani –
Published On: October 15, 2021 at 15:38 IST
The Hyderabad Bench of Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) denied to provide a Demurrage Waiver Certificate to Importer and highlighted that Green Peas removed from ‘Free’ to ‘Restricted Category’ prior approval required.
M/s. Oscar Pvt. Ltd. Kakinada, the Appellant, imported 6479.30 MTs of ‘Green Peas’ falling under CTH 0713 against 21 bills of lading through Visakhapatnam Seaport. Out of which, 09 bills of entry were filed primarily.
According to the Directorate General of Foreign Trade (DGFT) Notice No. 37/2015-2020 dated 18.12.2019, the import of peas is restricted, but the Appellant had acquired a Stay Order against the same Notification from the High Court of Andhra Pradesh.
Although, the Supreme Court in Transfer Petition (Civil) ratified the validity of Notification and the Trade Notice striking restriction on import of peas as it appeared to the Department that the appellant has violated the provisions of Foreign Trade Policy 2015 – 2020.
Further, the Department highlighted that the goods under import lying in Visakha Container Terminal CFS and Sravan CFS, Visakhapatnam are liable for confiscation under the provisions of Customs Act, 1962.
Furthermore, the Department argued for an order of absolute confiscation of the goods, to which the Commissioner (Appeals) vide order impugned herein allowed the redemption of the impugned goods under Section 125 (1) of the Customs Act, 1962
The coram of Judicial Member, Sulekha Beevi C.S. and Technical Member P. Venkata Subba Rao said that “the goods have been confiscated for violation of the Notification / Trade Notice. These are serious infractions on the part of the appellant importer.”
Further the Bench observed that the Appellant approached the Jurisdictional High Court after the issuance of the Notification and on the basis of Interim Stay of the Notification. There were decisions rendered by various other High Courts (Madras, Gujarat) which upheld the validity of Notification.
Furthermore, the Bench noted that the Supreme Court in the case of Agricas LLP held that when importers have taken such a chance there cannot be any bonafide belief on their part and that the appellant was fully aware that they may have to face a dispute in regard to the Notice.
The CESTAT directed an order stating that the Appellant has not been able to justify the import, the Notification having been upheld by the Hon’ble Supreme Court and that the Supreme Court has categorically held that there cannot be any bonafide belief when the importers have taken their chance to import the goods and that hence, they do find that the appellant stands any favorable chance for the issue of a Certificate of Waiver of Demurrage Charges.
The Tribunal modified the impugned Order passed by the Commissioner (Appeals) to the limited extent of allowing the Appellants to re-export the impugned goods on payment of redemption fine of Rs.2 crores. The imposition of a penalty of Rs. One crore is sustained.