2014 (10) TMI 448 - HC - Central Excise

Non fulfillment of export obligation - transfer of LOP - STPI unit - Jurisdiction of Commissioner of Central Excise to issue show cause notice - The petitioner attempts to project the show cause notice as one that has been issued without jurisdiction, by contending that once the transfer of the letter of permission is permitted by the Software Technology Parks of India, the Commissioner of Central Excise would not have jurisdiction to proceed against the petitioner. - Held that - A careful look at the above circular would show that the circular deals with an entirely different contingency. Whenever a unit fails to achieve the target fixed (non fulfillment of export obligation), after a block of five years, the Development Commissioner would take a final decision within a period of six months after the expiry of five years. Based upon the said final decision, the Customs/Central Excise Authorities have to take action for recovery of duty. circular has no application to cases of this nature. In this case, we are not concerned with the shortfall in the achievement of target. We are concerned with serious allegations made in the show cause notice. Therefore, what applies to a genuine exporter under the circular bearing No.12/2008, cannot be used as a shield by the petitioner. Hence, the first writ petition challenging the show case notice is liable to be dismissed. There is one more reason as to why the first writ petition deserves to be dismissed. The show cause notice impugned therein is dated 18.4.2011. The petitioner kept on dillydallying for a period of more than a year seeking time to submit objections. It is only in August 2012, after a gap of about 16 months of dillydallying, that the petitioner came up with the first writ petition. Therefore, there are no bona fides in the challenge made by the petitioner to the show cause notice. The first respondent issued the impugned show cause notice to the petitioner as well as the transferees. In the event of the first respondent fixing the responsibility jointly and severally upon all of them, the petitioner can always proceed against the transferees in accordance with the terms and conditions of the contract that they have with the transferees. Since the exemption was granted only to the petitioner on condition that the petitioner fulfills an export obligation, the petitioner cannot turn around and say that the transferees are the beneficiaries of the exemption and that the responsibility to fulfill export obligation should be fixed only upon the transferees. - Decided against assessee.

Issues Involved:
1. Validity of the show cause notice issued by the Commissioner of Central Excise.
2. Jurisdiction of the Commissioner of Central Excise to issue the show cause notice.
3. Obligation of the petitioner to comply with the terms of the exemption notification.
4. Transfer of property rights and its impact on the letter of permission and obligations.
5. Validity and enforceability of the decision by the Inter Ministerial Standing Committee regarding the extension of the letter of permission.

Detailed Analysis:

1. Validity of the Show Cause Notice:
The first issue revolves around the validity of the show cause notice issued by the Commissioner of Central Excise. The petitioner challenged the show cause notice on the grounds that it was issued without jurisdiction. However, the court noted that the show cause notice was not challenged on the ground of jurisdiction but rather on the contention that the Commissioner of Central Excise would not have jurisdiction once the transfer of the letter of permission was permitted by the Software Technology Parks of India. The court found this contention fundamentally flawed, as the show cause notice was also issued against the transferees, indicating that the Commissioner of Central Excise retained jurisdiction to initiate proceedings under Sections 111 and 112 of the Customs Act, 1962.

2. Jurisdiction of the Commissioner of Central Excise:
The court emphasized that its jurisdiction to interfere at the stage of a show cause notice is extremely limited and circumscribed. It can only intervene if the show cause notice is found to be without jurisdiction. The court concluded that the Commissioner of Central Excise did not lose jurisdiction merely because the letter of permission was transferred, and the petitioner's challenge on this ground was not maintainable.

3. Obligation of the Petitioner to Comply with the Terms of the Exemption Notification:
The petitioner was granted permission to import capital goods worth Rs. 2500 lakhs under an exemption notification, provided the goods and services were used for the export of software and IT services by the STP Units located within the infrastructure facility at the park. The petitioner had already transferred their rights to two companies before receiving the letter of approval from the Government for setting up the infrastructure facility. The court found that the petitioner did not inform the Government of India about the transfer, which was a breach of the conditions of the letter of approval. Consequently, the petitioner could not claim to have complied with the terms of the exemption notification.

4. Transfer of Property Rights and Its Impact on the Letter of Permission and Obligations:
The court noted that the petitioner had entered into agreements transferring their 74% undivided interest in the land and building to Pacifica Infrastructure Company Private Limited and E-lights Technopark Private Limited before submitting their proposal for the development of the IT park. The licence issued to the petitioner was not transferable and contained several conditions that the petitioner could not have complied with after transferring their rights. The court pointed out that the petitioner's transfer of property rights rendered the general bond executed by the petitioner meaningless and violated the conditions of the licence.

5. Validity and Enforceability of the Decision by the Inter Ministerial Standing Committee:
The second writ petition sought a Mandamus to direct the Software Technology Parks of India to give effect to the orders of the Inter Ministerial Standing Committee, which extended the letter of permission for four years. The court noted that the petitioner had transferred their property rights within two months prior to filing the application for approval, and this fact was not considered by the Inter Ministerial Standing Committee. Additionally, the original letter of permission expired on 21.12.2008, and the application for extension was made two years after the expiry. The court questioned the validity and enforceability of the decision by the Inter Ministerial Standing Committee under these circumstances.

Conclusion:
The court dismissed both writ petitions. The first writ petition challenging the show cause notice was dismissed on the grounds that the petitioner's challenge was not maintainable and lacked bona fides. The second writ petition seeking a Mandamus was dismissed because the decision of the Inter Ministerial Standing Committee was not shown to be based on all relevant facts, and the application for extension was made after an unreasonable delay. The court emphasized that the petitioner could always raise their objections in response to the show cause notice and seek appropriate remedies against the transferees in arbitration proceedings.

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