New Conditions for claiming exemption can’t be introduced via Circular


Quick Summary
The CESTAT, Kolkata has ruled that new conditions for claiming customs duty exemptions cannot be introduced through a circular if they are not part of the original exemption notification. In this case, the Bank of Nova Scotia, acting as a 'Nominated Agency', imported precious metals duty-free to supply to exporters. The tribunal found that a requirement to obtain a Bank Realisation Certificate within a specific timeframe, introduced by a circular, was not permissible as it wasn't in the original notification. Therefore, the demand for customs duty based on this circular was deemed invalid.

Court :
CESTAT, Kolkata

Brief :
The CESTAT, Kolkata in M/s. The Bank of Nova Scotia v. Commissioner of Customs (Admn. & Airport), [Final Order No. 77289-77292/2023 dated October 5, 2023] held that a new condition, which is not inherent to the exemption notification, cannot be introduced via a Circular.

Citation :
Final Order No. 77289-77292/2023 dated October 5, 2023

The CESTAT, Kolkata in M/s. The Bank of Nova Scotia v. Commissioner of Customs (Admn. & Airport), [Final Order No. 77289-77292/2023 dated October 5, 2023] held that a new condition, which is not inherent to the exemption notification, cannot be introduced via a Circular.

Facts

M/s. The Bank of Nova Scotia, ("the Petitioner"), acted as a 'Nominated Agency' under the Foreign Trade Policy. In line with the scheme introduced by the Government of India, known as 'Export against supply by Nominated Agency,' the appellant imported gold, silver, and platinum without paying customs duties. They then supplied these materials to various exporters for the production of jewellery intended for subsequent export.

The Petitioner contested an order issued by the adjudicating authority, which upheld a demand for customs duty amounting to Rs. 13,53,67,882 and Rs. 2,44,32,057, respectively, along with accrued interest. The Petitioner argued that Notification 57/2000 dated May 8, 2000, did not impose a condition requiring the Nominated Agency to obtain certain documents from exporters within a specified timeframe to avail of the exemption. 

The Petitioner further pointed out that such a condition was introduced only through Circular 28/2009 dated March 31, 2009 ("Impugned Circular"). Furthermore, they emphasized that established legal principles dictate that new conditions, which are not explicitly outlined in the original Notification, cannot be imposed through a Circular.

The department, ("the Respondent") contended that the Nominated Agency was obliged to present a Bank Realization Certificate ("BRC") from exporters within a prescribed timeframe to qualify for the benefits under Notification 57/2000 dated May 8, 2000. If the NominatedAgency failed to submit the BRC as outlined in the Impugned Circular, the customs duties previously waived on the supplied goods could be demanded from the Nominated Agency.

Issue

Whether the Petitioner is liable to pay customs duty for the import of precious metals when it fails to produce the BRC within the prescribed period, as per the impugned circular, despite the absence of such a condition in the original Notification 57/2000 dated May 8, 2000?

Held

The CESTAT, Kolkata in Final Order No. 77289-77292/2023 dated October 5, 2023held as under:

  • Noted that if the sale proceeds are not collected, it would lead to a request for Customs duty that was initially waived for the nominated agency.  
  • Determined that introducing a new requirement not originally outlined in the Notification, but introduced via the impugned Circular, was not permissible, and the duty demand was in violation of the notification's terms.
     

FAQ :

The main issue was whether the Bank of Nova Scotia, as a 'Nominated Agency', was liable to pay customs duty on imported precious metals for failing to produce a Bank Realisation Certificate (BRC) within a timeframe specified by a circular, despite this condition not being in the original exemption notification.

The original Notification 57/2000 allowed for the import of precious metals without paying customs duties for 'Nominated Agencies' supplying them to exporters for jewellery production intended for export. It did not include a specific timeframe for obtaining documents from exporters.

The Impugned Circular introduced a condition requiring the 'Nominated Agency' to obtain specific documents, like a Bank Realisation Certificate (BRC), from exporters within a set timeframe to avail of the exemption.

The CESTAT ruled that introducing a new requirement via a circular, which was not part of the original exemption notification, was not permissible. Therefore, the demand for customs duty based on the circular was in violation of the notification's terms.

No, according to this judgement, new conditions that are not inherent to an exemption notification cannot be introduced through a circular. Any such additions are considered impermissible.

 

Bimal Jain
Published in Excise
Views : 235

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