2011 (6) TMI 630 - HC - Customs

Writ petition - Failure to produce end user certificate (EU) - case of the petitioner is that no prior notice as contemplated under Section 28 was ever served before Ext.P30 order was passed on 08/06/2007 and it was not communicated to the petitioner till 2010 - Held that - goods were cleared on 29/01/2005, on the undertaking that the petitioner will produce the EU Certificate within 6 months, which was not complied with by the petitioner. Under such circumstances, Ext.R(a) letter dated 14/12/2005 was issued, requiring the petitioner to produce the same. Since the petitioner did not comply with the same, a further notice dated 21/6/2006 was issued demanding the petitioner to repay the short levy amount as per Ext.R(b) and another letter was issued, asking the petitioner to re-validate the bank guarantee already furnished, as the same was to expire on 18/01/2006. In reply to the same, the petitioner, as per Ext.R(c) letter dated 24/06/2006, requested 90 days time to produce the EU Certificate, no merit or bonafides in the contention raised by the petitioner as to the allegedly loss of opportunity of hearing, writ petition fails and the same is dismissed

Summary

Issues:
Challenge to Ext.P30 order dated 08/06/2007 for short levy confirmation without prior notice as per Section 28.

Analysis:
The petitioner contested the Ext.P30 order dated 08/06/2007 confirming a short levy without receiving a prior notice as required under Section 28. The petitioner imported Heavy Melting Steel Scraps, cleared under a notification allowing duty relaxation upon producing an 'End Use Certificate' (EU Certificate) and furnishing a bank guarantee. The EU Certificate was not submitted, and the bank guarantee was revalidated. The petitioner claimed ignorance of the Ext.P30 order until 2010, deeming it illegal and challenging its validity.

Upon examination, it was revealed that the petitioner failed to comply with producing the EU Certificate within the stipulated time frame. Several communications were sent to the petitioner requesting compliance, including notices to repay the short levy amount and revalidate the bank guarantee. Despite multiple opportunities, the petitioner did not respond adequately, leading to the finalization of the Ext.P30 order. The respondent argued that the petitioner did not approach the court with clean hands and had sufficient chances to rectify the situation.

The court issued an interim order to ascertain the circumstances of the Ext.P30 order, emphasizing the need for proper service of notices and communication. The respondent clarified that the Ext.P30 order was sent via registered post after giving the petitioner numerous opportunities to fulfill the requirements. The court, after reviewing the facts and evidence, concluded that the petitioner's claims lacked merit and denied any relief regarding the challenge to the Ext.P30 order dated 08/06/2007.

Consequently, the writ petition was dismissed, and the petitioner was directed to pay costs of Rs.5,000 to the Kerala High Court Legal Services Committee within one month. Failure to comply would result in the issuance of a recovery certificate to the concerned beneficiary. The judgment highlighted the importance of compliance with statutory requirements and the consequences of failing to fulfill obligations in import procedures.