Authorities cannot apply prospective regulation retroactively, and Flexible Intermediate Bulk Containers are classified under Chapter 6305 based on established precedents.

ORDER :

S.R.KRISHNA KUMAR, J.

In this petition, the petitioner seeks the following reliefs:-

i. Issue an order in the nature of a Writ of Certiorari or any other appropriate writ or order to quash and set aside Order No.63/64/2022-CUS (SZ)/ASRA/MUMBAI dated 15/16-02-2022 of the Government of India passed by the Principal Commissioner and Ex-Officio Additional Secretary to the Government of India, under section 129 DD of The Customs Act, 1962 (Annexure-A); and/or

ii. Pass such other order/s as deemed fit in the facts and circumstances of this case including the award of costs.

2. A perusal of the material on record will indicate that the subject goods of the petitioner were exported during the period from July 2011 to September 2011 and duty drawbacks were sanctioned in favour of the petitioner. On 28.02.2013, the Additional Commissioner of Customs, ICD, Whitefield, Bangalore, issued a show cause notice to the petitioner seeking recovery of excess drawback granted in favour of the petitioner. The petitioner having submitted a reply to the said notice, the Additional Commissioner of Customs, ICD, Whitefield, Bangalore, passed an order dated 09.10.2013, confirming the demand, interest, penalty etc., as against the petitioner. Aggrieved by the same, the petitioner approached the Appellate Authority who also dismissed the appeal. Aggrieved by the orders of the Original Authority and Appellate Authority, the petitioner filed a revision petition, which was partly allowed by dropping all charges, except the demand of Rs.6,79,492/- together with interest towards the drawback granted in favour of the petitioner, who is before this Court by way of the present petition.

3. A perusal of the impugned orders will indicate that the respondents have proceeded to invoke and apply the Custom Circular No.42/2011 dated 22.09.2011 and the notification bearing No.75/2011-Cus. (N.T.) dated 28.10.2011. A perusal of the said circular will indicate that the same having been issued in September and October 2011, the said notification and circular are evidently prospective in nature, application and operation and would not apply to the goods exported by the petitioner for the period from July 2011 to September 2011 which were earlier in point of time and prior to the issuance of the aforesaid circular and notification. It is, therefore, clear that the authorities have completely misdirected themselves in applying and invoking the aforesaid circular and notification, which do not apply to the subject goods exported by the petitioner or the drawback sanctioned in favour of the petitioner for the period from July 2011 to September 2011, much prior to the issuance of the aforesaid circular and notification, which are prospective and not retrospective in nature, application or operation.

4. The CESTAT, South Zonal Bench, Chennai, in the case of COMMR. of C. EX., TIRUCHIRAPPALLI v. KARUR KCP PACKAGINGS Pvt. Ltd. , 2016 (331) E.L.T. 604 (Tri. – Chennai), held as under:-

“[Order per: R. Periasami, Member (T)]. - All the seven appeals filed by Revenue and six cross-objections filed by the respondents are taken up together as the issue involved in these appeals are common and related to classification of Flexible Intermediate Bulk Containers (FIBC) would fall under Chapter Heading 3920 90/3923 29 90 or 6305 32 00 of CETH.

2. In the cases of Appeal Nos. E/76/2011 and E/146/2012, the Department issued show cause notices to the respondents proposing to classify the goods FIBC under Chapter 3923 29 90 as articles of plastics. The adjudicating authority in Order-in-Original classified the FIBC under Chapter 3923 29 90. On appeal by the respondents, the Commissioner (Appeals) in the impugned orders allowed the appeals and classified the goods under Chapter 6305 32 00 of CETH and set aside the ad