2016 (12) TMI 1107 - HC - Customs

Demand - Interest - Penalty - Held that - the petitioner has agreed to deposit entire amount of ₹ 83,49,189/being benefit availed by the petitioner under VKGUY Scheme from the date of Spices was deleted / removed from VKGUY Scheme and considering the fact that during the pendnecy of the present petition, in which, initially, petitioner challenged action of the respondent in putting the petitioner in the DEL, the final order has been passed by the First Authority on the show cause notices confirming the demand of ₹ 83,49,189/ applicable interest and imposing fiscal penalty. In the meantime, it will be open for the petitioner to submit appropriate application before the appropriate authority to remove the name of the petitioner from the DEL which may be considered by the appropriate authority in accordance with law and on merits at the earliest - Petition partly allowed.

Issues:
1. Interpretation of VKGUY Scheme and benefit availed by the petitioner.
2. Treatment of petitioner as a person in default during pendency of show cause notices.
3. Challenge to communication placing petitioner in Denial Entity List (DEL).
4. Request for reconsideration of show cause notices by the First Authority.
5. Agreement for unconditional deposit by petitioner and subsequent actions.

Analysis:

Interpretation of VKGUY Scheme and benefit availed by the petitioner:
The petitioner, engaged in processing agricultural products, availed benefits under the VKGUY Scheme until "Spices" were withdrawn from the scheme. The audit team raised objections, leading to show cause notices demanding refund of the benefit availed. The Deputy Director General confirmed the demand and imposed a fiscal penalty under the Foreign Trade Act, 1992. The petitioner challenged this order, citing lack of awareness about the scheme's changes. The petitioner agreed to deposit the demanded amount unconditionally for reconsideration of the matter.

Treatment of petitioner as a person in default during pendency of show cause notices:
The petitioner argued against being labeled as a defaulter while the show cause notices were pending, emphasizing the absence of a clear demand against them. The Division Bench issued notices for the petitions, and the petitioner was placed in the Denial Entity List (DEL) during this period, affecting their business activities.

Challenge to communication placing petitioner in Denial Entity List (DEL):
The petitioner challenged the communication placing them in the DEL, contending that being labeled as deficient was premature and hindered their operations. The petitioner sought relief through the Special Civil Application.

Request for reconsideration of show cause notices by the First Authority:
The petitioner requested the First Authority to reconsider the show cause notices after their unconditional deposit of the demanded amount. The petitioner acknowledged the mistake in availing benefits post the scheme amendment and sought leniency in imposing fiscal penalties.

Agreement for unconditional deposit by petitioner and subsequent actions:
Both parties agreed that upon the petitioner's unconditional deposit of the demanded amount, the First Authority should review the show cause notices solely concerning interest and fiscal penalties. The court directed the quashing of the previous order, allowing the petitioner to make submissions and requesting removal from the DEL upon compliance. The judgment emphasized the need for fairness and adherence to legal procedures in resolving the matter, ensuring the petitioner's opportunity to present their case effectively.

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