2015 (5) TMI 878 - HC - Customs

Application for restraining Respondent from invoking and encashing bank guarantees/pay orders - Held that - The bank guarantees/pay orders were retained because the Petitioner having failed to discharge the export obligation and no certificate having been obtained in that behalf, there was a default in complying with the requisite provisions of the Customs Act, 1962 and the Rules made thereunder. It is for that purpose and to secure the revenue that this without prejudice arrangement was made. If the Revenue has any powers in terms of the rules and regulations to initiate legal proceedings, they are free to do so. They are equally free to pass such orders as are permissible in law. However, we cannot allow the retention of the bank guarantees/pay orders, as sought by the Respondents. The bank guarantees/pay orders be returned, duly cancelled, within a period of four weeks - Decided in favour of appellant.

Issues:
1) Restraint against invoking and encashing bank guarantees/pay orders by Respondent Nos. 2 and 3.
2) Withdrawal of communication Annexure 'O' dated 5th August, 2014.
3) Extension in export obligation for two years without payment of customs duty.
4) Discharge and cancellation of renewed bank guarantees/pay orders.
5) Retention of bank guarantees/pay orders by contesting Respondents.
6) Compliance with Customs Act, 1962 and Rules made thereunder.

Analysis:
1) The Writ Petition sought a restraint against Respondent Nos. 2 and 3 from invoking and encashing bank guarantees/pay orders submitted by the Petitioner. The Court initially passed an order not to encash the bank guarantees/pay orders, which was continued by a Division Bench. The matter was posted for admission, and the Court continued the adinterim order till a specified date. Eventually, the Court ordered the continuation of the adinterim order for a further period without prejudice to the rights of both parties, allowing the Petitioner to obtain the outcome of a request made to the Director General of Foreign Trade, Government of India.

2) Subsequently, the Petitioner received a certificate titled Export Obligation Discharge Certificate (EODC). The Petitioner requested the discharge and cancellation of the bank guarantees/pay orders, which had expired but were renewed. The Respondents did not dispute the receipt of the certificate but requested an opportunity to scrutinize it. However, the Court, after hearing both sides, noted that the controversy had become academic after the issuance of the certificate by the Director General of Foreign Trade. The Court emphasized that there was no basis for the Respondents to retain the bank guarantees/pay orders, as the purpose of their retention was to secure revenue due to the Petitioner's failure to discharge the export obligation.

3) The Court clarified that if the Respondents intended to pursue legal proceedings, they were free to do so, but they could not retain the bank guarantees/pay orders. The Court directed the return of the bank guarantees/pay orders, duly cancelled, within a specified period. The decision was based on the fact that the issuance of the Export Obligation Discharge Certificate had rendered the matter moot, and there was no justification for the continued retention of the bank guarantees/pay orders.

4) In conclusion, the Court emphasized the importance of complying with the Customs Act, 1962, and the Rules made thereunder. The judgment highlighted the significance of obtaining necessary certificates and fulfilling export obligations to avoid default and secure revenue. The Court's decision to order the return of the bank guarantees/pay orders was based on the completion of the export obligation and the issuance of the EODC, signaling the resolution of the dispute and the absence of a legal basis for the Respondents to retain the bank guarantees/pay orders.

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