Interpretation of DGFT Policy Notification by Customs officer & Order of Confiscation without SCN
In M/S. SALMAG ENTERPRISES VERSUS THE ADDITIONAL COMMISSIONER OF CUSTOMS (ADJ) , TUTICORIN W.P.(MD)No.13931 of 2020 And WMP(MD)Nos.11586 & 11592 of 2020 decided on 08.03.2021 MADRAS HIGH COURT held that ;
The importer’s contention is that the goods are freely importable. The stand of the customs authority is that they are restricted items. The issue turns on an interpretation of the policy notification issued by the Director General of Foreign Trade.
The Customs authority on its own ought not to have interpreted as to whether the goods in question can be called as restricted items. The Customs department ought to have sought a clarification directly from the concerned authority in DGFT. In the alternative, The Customs Dept could have mandated the Importer to move the competent authority under Foreign Trade (Development and Regulation) Act, 1992 and obtain a clarification. Instead of doing so, The Customs Dept applied his own understanding of the policy notification.
The impugned confiscation order is also violative of the principles of natural justice. The order of confiscation has been passed without issuing show cause notice. It is true that The Customs Dept has called upon the importer to finalize the issue without show cause notice or personal hearing. But importer through his letter to Customs said that “since according to him there is no policy violation, he wanted the goods to be cleared without any delay”. But The Customs Dept. had a different perception. They were not on the same page. There was a fundamental divergence in the stand taken by the two.
The Customs Dept ought to have followed the procedure laid down in Section 124 of the Customs Act speaks about Issue of show cause notice before confiscation of goods.
The Customs authority had acted illegally and in violation of the statutory procedure. The contentions of the importer as to the nature of the goods is left open. The matter is remitted to the file of the customs to pass order afresh in accordance with law.
Key Takeaway from this case :
1. If there is any issue in interpretation of import policy notification The Customs department has to sought clarification from the concerned authority in DGFT directly or through the importer
2. Confiscation of goods without Show Cause Notice u/s 124 is invalid
3. In view of the amendment made to Section 153(1)(a) of the Customs Act, 1962, service of notice on the customs broker shall be treated as service on the assessee.