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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 JUDGMENT-WP-2831-2018 (F).DOCX the Regional Value Content (RVC) of the Tin Ingots was more than 35% when it was not.

29. To implement the AIFTA provisions and related matters, the Indian Government undertook several measures, including the issuance of Customs Exemption Notification No. 46 of 2011, dated 1 June 2011, to provide preferential customs tariffs as well as the Customs Tariff (DOGPTA) between ASEAN and the Republic of India, Rules 2009. This was based on the premise that the provisions of a treaty like AIFTA, unless transformed into or incorporated into municipal laws, cannot be enforced by the beneficiaries in the municipal or JUDGMENT-WP-2831-2018 (F).DOCX State Courts. Only after such transformation or incorporation, and to the extent of it, could a beneficiary seek enforcement; otherwise, they could not.

52. A Division Bench in the Gujarat High Court in Trafigura (supra) has summarised the legal position precisely in the context of the invocability of Article 24 of AIFTA by detailed reference to the DOGPTA Rules of 2009. This decision affords answers to most of the issues raised by the petitioners. Even the factual base in the two matters does not differ significantly. In the Gujarat case, the challenge was to the orders holding that there was fraud, suppression and misrepresentation in availing the benefits of the Customs exemption notification in respect of tin ingots imported from Malaysia. Since there was ample material and the show cause notices suffered from no infirmities, the orders were upheld. In the cases at hand, the challenge is to the show cause notices making the same or similar allegations. The allegations in the show-cause notices have yet to be adjudicated. The primary challenge before both courts was that the Customs authorities were denuded of their statutory powers in such cases due to the specialised dispute resolution mechanism outlined in Article 24 of the AIFTA.

55. Furthermore, the above contention was neither supported by reference to a principle nor precedent. The circumstance that the provisions of AIFTA were sought to be given effect to the 2009 Rules and the customs exemption notification is relevant. These Rules or Notifications are conspicuous by their non-reference to Article 24 of AIFTA. Thus, the absence of any statute transforming Article 24 into domestic or municipal law coupled with the omission to even refer to Article 24 in the 2009 Rules made to implement the AIFTA makes it clear that the provisions of Article 24 of AIFTA cannot be sought to be enforced before this Court by the Petitioners and based upon the same, the action of the customs authorities cannot be questioned as being without jurisdiction. Based on a treaty provision that is not transformed or incorporated into the national law or statute, the provisions of the existing JUDGMENT-WP-2831-2018 (F).DOCX Customs Act cannot be undermined, or the powers and jurisdiction of the customs authorities questioned.