2011 (8) TMI 876 - HC - Customs

Differential duty - principles of laches, acquiescence and waiver - Adjudicating Authority on remand and after giving opportunity of hearing to the petitioner, recorded that the petitioner did not regularize the shortfall in exports as per the Export-Import Policy and vide order dated 23rd February, 2007 imposed fiscal penalty of ₹ 66,00,000/- on the petitioner - The entire conduct of the petitioner shows that the petitioner has been evading the duty due from him and has filed this petition only upon being threatened with recovery - Petition is dismissed

Summary

Issues:
1. Delay in filing the writ petition challenging the order of the Additional Director General of Foreign Trade.
2. Merits of the case regarding the imposition of fiscal penalties on the petitioner.
3. Failure of the petitioner to make a pre-deposit leading to the dismissal of the appeal.
4. Availability and exhaustion of alternative remedies before filing the writ petition.

Analysis:
1. The petitioner filed a writ petition challenging the order of the Additional Director General of Foreign Trade after a significant delay of nearly four years. The court observed that the petitioner's explanation for the delay was false, citing principles of laches, acquiescence, and waiver. The petitioner's claim of not receiving the order was deemed unsubstantiated, and the court found no proof of the order being handed over. The petition was held liable to be dismissed based on the delay in filing.

2. On examining the merits of the case, it was noted that the Adjudicating Authority had imposed a fiscal penalty on the petitioner for non-fulfillment of export obligations after availing import duty benefits. Despite multiple opportunities granted to the petitioner, including a remand to the Adjudicating Authority, the petitioner failed to regularize the export shortfall as per the Export-Import Policy. The Appellate Authority dismissed the petitioner's appeal, citing the petitioner's failure to make a pre-deposit and lack of a valid case.

3. The Appellate Authority's order dated 4th December, 2007 highlighted the petitioner's non-compliance with the requirement to make a pre-deposit, leading to the dismissal of the appeal. The court noted that the petitioner had been evading the penalty for nearly ten years and only filed the petition when faced with recovery proceedings. Despite an opportunity to deposit a reduced amount in court, the petitioner's counsel declined, further indicating evasion of duties. The court upheld the Appellate Authority's decision to reject the appeal due to the petitioner's failure to make the pre-deposit.

4. The respondents argued that besides the delay, the petition was not maintainable due to the availability of alternative remedies that were not exhausted before filing the writ petition. The court found no merit in the petition and dismissed it, emphasizing that no costs were awarded. The petitioner's conduct of evading duties and delaying compliance were significant factors in the court's decision to uphold the dismissal of the appeal by the Appellate Authority.