Customs cannot deny benefit where licensing authority not taking any action – SFIS benefit available to golf carts

EIH Associated Hotels Ltd. Vs Commr. of Customs (E) (CESTAT Mumbai)

After considering the submissions of both sides, we find that in the first round of litigation when the original authority confirmed the demand and confiscated the goods with a redemption fine of Rs.1,00,000/-, the appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) set aside the order passed by the adjudicating authority and directed the adjudicating authority to decide the case afresh as per DGFT guidelines. In spite of this specific direction by the Commissioner (Appeals) to the original authority to decide the case as per the DGFT guidelines, the original authority had still not followed the guidelines and the clarifications issued by the DGFT and had wrongly come to the conclusion that the DGFT guidelines and the clarifications are not binding on the Customs authorities. The original authority confirmed the demand against the appellant on the same ground and the Commissioner (Appeals) also affirmed the order of the original authority by holding that the guidelines and the clarifications of the DGFT are not binding on the Customs authorities. We further find that the department did not file any appeal against the order dated 26.12.2008 passed by the Commissioner (Appeals) in the first round of litigation. Since the department had not challenged the said order, the original authority as well as the appellate authority cannot go beyond the direction issued by the Commissioner (Appeals). Further, we find that as per the decisions cited supra, the clarifications issued by the DGFT are binding on the Customs authorities. We also find that in the present case, DGFT has clarified by issuing various clarifications to the effect that golf carts do not come under the restricted category of vehicles, which is stated in para 3.6.4.5 of the Foreign Trade Policy. Further, we find that the licensing authority, i.e. DGFT, has not taken any action against the appellant for wrongly availing the benefit under the SFIS nor did they take any steps against the appellant. Hence, in our considered view, the Customs authorities cannot refuse exemption to the appellant.

FULL TEXT OF THE CESTAT JUDGEMENT

The present appeal is directed against the impugned order dated 23.09.2011 passed by the Commissioner of Customs (Appeals), whereby the Commissioner (Appeals) has rejected the appeal of the appellant.

2. Briefly the facts of the present case are that the appellant had imported two golf carts with accessories vide Bill of Entry No.928663 dated 12.10.2006 under licence No.0510183761 dated 30.05.2006 issued under Served Form India Scheme (SFIS) availing exemption of Customs Notification No.92/2004-Cus. dated 10.09.2004 by debiting the said SFIS scrip. The assessable value was Rs.8,23,159/- and duty foregone was Rs.3,05,645/-. In terms of para 3.6.4.5 of Foreign Trade Policy 2004-2009 as amended in RE-2006, utilization of duty credit earned under SFIS was not permitted for payment of duty on vehicles even if such vehicles were freely importable under ITC (HS). The said duty of Rs.3,05,645/- was required to be paid in cash/pay order. Since the appellant had imported the said golf carts in contravention of the provisions of para 3.6.4.5 of Foreign Trade Policy 2004-2009 (RE-2006), Notification No.92/2004-Cus. dated 10.09.2004 as amended vide Notification No.43/2006-Cus. dated 05.05.2006 and Customs Circular No.16/2006-Cus. dated 09.05.2006, a show cause notice dated 30/21.07.2008 was issued to the appellant proposing confiscation of the goods under Section 111(d) and 111(o), recovery of the duty foregone along with interest and imposition of penalty under Section 112 of the Customs Act, 1962. After hearing the appellant, the adjudicating officer vide order-in-original No.77/2008 Adj. (X) dated 26.12.2008 confiscated the impugned goods with a redemption fine of Rs.1,00,000/-, confirmed the demand of duty and imposed penalty of Rs.2,00,000/- under Section 112. The appellant filed appeal before the Commissioner (Appeals) against the aforesaid order dated 26.12.2008. The Commissioner (Appeals) vide order-in-appeal No.392 (Gr.VIIR/H/I) 2009 (JNCH) Exp-04 dated 30.07.2009 set aside the said order and directed the original authority to decide the matter afresh after
considering the DGFT’s clarifications on the subject. The original authority again heard the appellant and after considering their submissions, reconfirmed the amount of duty, fine and penalty. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) ho rejected the same. Hence the present appeal.

3. Heard both sides and perused the records.

4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts of the case. He further submitted that the original authority as well as the appellate authority passed the orders by not following the direction issued by the Commissioner (Appeals). He further submitted that as per the Foreign Trade Policy (1st September 2004 – 31st March 2009), hotels (like the appellant) were entitled to duty credit scrips equivalent to 5% free to foreign exchange earned during the preceding financial year. In terms of para 3.6.4.5 of the Foreign Trade Policy 2004-2009, the utilization of duty credit earned under SFIS was restricted inasmuch as the said duty credit was not permitted to be utilized for payment of duty inter alia in case of import of vehicles. The learned counsel further submitted that even the Customs Notification No.92/2004-Cus. dated 10.09.2004, which otherwise exempted goods from customs duty if imported against SFIS certificate, also provided for a condition, viz., that exemption under the said notification shall not be available to vehicles under the said certificate. It is his further submission that under various definitions of the term “vehicle”, golf carts are not termed as vehicle and hence all carts do not come under the restricted category of vehicles, which is stated in para 3.6.4.5 of the Foreign Trade Policy. He also submitted that golf carts are required to operate only in the hotel premises for the convenience of the guests and senior citizens and are not used on the public roads and hence cannot be termed as vehicles. He further argued that DGFT had from time to time clarified that golf carts do not come under the definition of ‘vehicles’ for the purposes of SFIS. He further submitted that the clarifications given by the DGFT are binding on the Customs. He further submitted that the Commissioner (Appeals) in the impugned order has held that the DGFT guidelines are not binding on the Customs. He further argued that it is settled law that interpretation of any provision contained in the Foreign Trade Policy is the prerogative of DGFT and any clarification given by the DGFT is binding on the Customs authorities. The Customs authorities merely implement the policy of the DGFT. This has been held in the following decisions:-

(i) Suresh Enterprises vs. CC, Mumbai – 2005 (179) ELT 466 (Tri.-Mumbai);

(ii) UOI vs. Oceanic Export Corporation – 2000 (116) ELT 19 (Mad.);

(iii) M.K. Fisheries vs. CC, Cochin – 2002 (150) ELT 998 (Tri.-Chennai).

The learned counsel further submitted that as the Licensing Authority (in the present case, DGFT) has not claimed that the appellant had wrongly availed the benefit under the SFIS nor did they take any steps against the appellant, Customs authorities cannot refuse the exemption to the appellant. For this submission, he relied upon the decision of the Hon’ble Supreme Court in the case of Titan Medical Systems vs. CC – 2003 9 SCC 133.

5. On the other hand, learned AR for the Revenue defended the impugned order.

6. After considering the submissions of both sides, we find that in the first round of litigation when the original authority confirmed the demand and confiscated the goods with a redemption fine of Rs.1,00,000/-, the appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) set aside the order passed by the adjudicating authority and directed the adjudicating authority to decide the case afresh as per DGFT guidelines. In spite of this specific direction by the Commissioner (Appeals) to the original authority to decide the case as per the DGFT guidelines, the original authority had still not followed the guidelines and the clarifications issued by the DGFT and had wrongly come to the conclusion that the DGFT guidelines and the clarifications are not binding on the Customs authorities. The original authority confirmed the demand against the appellant on the same ground and the Commissioner (Appeals) also affirmed the order of the original authority by holding that the guidelines and the clarifications of the DGFT are not binding on the Customs authorities. We further find that the department did not file any appeal against the order dated 26.12.2008 passed by the Commissioner (Appeals) in the first round of litigation. Since the department had not challenged the said order, the original authority as well as the appellate authority cannot go beyond the direction issued by the Commissioner (Appeals). Further, we find that as per the decisions cited supra, the clarifications issued by the DGFT are binding on the Customs authorities. We also find that in the present case, DGFT has clarified by issuing various clarifications to the effect that golf carts do not come under the restricted category of vehicles, which is stated in para 3.6.4.5 of the Foreign Trade Policy. Further, we find that the licensing authority, i.e. DGFT, has not taken any action against the appellant for wrongly availing the benefit under the SFIS nor did they take any steps against the appellant. Hence, in our considered view, the Customs authorities cannot refuse exemption to the appellant.

7. In view of our above discussions, we set aside the impugned order by allowing the appeal of the appellant with consequential relief, if any.

(Pronounced in the open court on 12.06.2020)