International treaty provisions must be incorporated into domestic law to be enforceable; Customs Authorities retain jurisdiction under the Customs Act to issue show cause notices.

JUDGMENT :

(Per M. S. Sonak, J.)

1. Heard learned Counsel for the parties and with their consent, the matters are taken up for final disposal. Since there is no clarity on the Rule, we formally issue the Rule, and with the consent of and at the request of the learned Counsel for the parties, make it returnable immediately.

2. By judgment and order dated July 9, 2019, these Petitions, along with two others, were dismissed, relegating the Petitioners to respond to the impugned show cause notices and participate in the proceedings initiated.

3. The Petitioners in Writ Petition No. 2491 of 2018 (Kothari Metals Ltd) and Writ Petition No. 2831 of 2018 (Purple Products Pvt Ltd) challenged the order dated 9 July 2019 vide Civil Appeal Nos. 9010 of 2019 and 3011 of 2019. By a common order dated 25 November 2019, the Hon’ble Supreme Court set aside the order dated 9 July 2019 and restored the two Writ Petitions to their original numbers, to be decided on their own merits in accordance with the law, leaving all questions open.

4. By order dated 27 February 2020, this Court, after taking cognizance of the Hon’ble Supreme Court’s order dated 25 November 2019 and the fact that the Petitioner in Writ Petition No. 3023 of 2018 (Sri Bhavani Metals Pvt Ltd) and Writ Petition No. 3474 of 2018 (Sizer Metals Pvt Ltd) had not challenged this Court’s order dated 9 July 2019 dismissing the said two Petitions, held that only Writ Petition No. 2491 of 2018 instituted by Kothari Metals Ltd and Writ Petition No. 2831 of 2018 instituted by Purple Products Pvt Ltd remain for consideration. Mr Nankani and Mr Choudhary appeared for the Petitioners in the said two Petitions and were heard exhaustively. They also submitted a written synopsis of their arguments at the conclusion of their oral submissions.

5. In both these Petitions, the Petitioners essentially challenge the show cause-cum-demand notices issued under Section 28 of the Customs Act, 1962 (Customs Act), in the context of benefits under Customs Notification No. 46/11 dated 1 June 2011 concerning the import of “Tin Ingots” from Malaysia. The impugned show cause notices, inter alia, alleged that the Petitioners had secured benefits under Customs Exemption No. 46 of 2011 by misrepresenting that the Regional Value Content (RVC) of the Tin Ingots was more than 35% when it was not.

6. The Petitioners’ main contention in these Petitions is that a Free Trade Agreement dated August 30, 2009 (AIFTA) between the Republic of India and the Association of Southeast Asian Nations (ASEAN), governs the subject transaction. Accordingly, the Petitioners contend that the initiation of any adjudication proceedings under the Customs Act without observing the due process of law and as prescribed in the treaty, which would include the specific dispute resolution mechanism provided under Article 24, is wholly without jurisdiction and unsustainable.

7. After these Petitions were dismissed on 9 July 2019, the Petitioners, in the Appeals instituted by them before the Hon’ble Supreme Court had urged that the issue about the efficacy of Article 24 of Appendix ‘D’ to the treaty cannot be adjudicated by the authorities under the Customs Act and therefore, this Court was not justified in dismissing the Petitions by relegating the Petitioners to avail of the alternate remedies. The Hon’ble Supreme Court accepted this contention, and this Court’s order dated 9 July 2019 was set aside, and these Petitions were restored to this Court’s file.

8. The above is evident from the Hon’ble Supreme Court’s order dated 25 November 2019 dispo