2017 (8) TMI 872 - HC - Customs

100% EOU - Refund claim - shortfall in export obligation - denial of the benefit of a Public Notice dated 12-8-2013 - Effective date of applicability - Held that - The terms of the Public Notice are clear that the verification i.e. any authorization holder choosing to avail the benefit should complete the process of payment on or before 31-3-2014. The policy is applicable to all pending cases of the default in meeting export obligations. This Court is of the opinion that the respondent s stand that the petitioner was ineligible to the benefit, is untenable; that the remand by the Appellate Authority to the Adjudicating Authority, it cannot be said that the matter remained concluded. Till date, the Adjudicating Authority has not passed any fresh orders and in that since the matter is pending or live. The petitioner fulfilled the requirement of the Public Notice and applied on 7-3-2014 i.e. well before the cut off date of 31-3-2014. The respondents are hereby directed to verify the petitioner s application and pass the necessary orders after satisfying themselves as to other conditions of eligibility, with respect to the regularization of the default in EOU and as to its entitlement for consequential refund in terms of the Public Notice dated 12-8-2013 - petition allowed by way of remand.

Issues:
1. Denial of refund and benefit under a Public Notice dated 12-8-2013.
2. Eligibility for regularization and refund under the Foreign Trade Policy.
3. Interpretation of the Public Notice's applicability to pending cases.
4. Adjudication process completion and imposition of fiscal penalty.
5. Respondent's contention on eligibility for benefit under the Public Notice.
6. Verification and application process completion before the cut-off date.

Analysis:
The petitioner's grievance in this case pertains to the denial of refund and benefit under a Public Notice issued by the Ministry of Commerce and Industry. The petitioner had been granted an advance license in 1994, exported goods under it, and later faced a show cause notice for non-fulfillment of export obligations. After a series of correspondences, the petitioner applied for clubbing of licenses and sought relief under the Public Notice dated 12-8-2013. Despite paying the applicable Customs duty and interest exceeding the required amount, the petitioner's request remained unattended. The respondent argued that only fresh or live cases were eligible for the benefit, contending that the matter was concluded. However, the Court held that as the Adjudicating Authority had not passed any fresh orders, the matter was still pending, and the petitioner had applied before the cut-off date of 31-3-2014, meeting the requirements of the Public Notice.

The Court emphasized that the Public Notice applied to "all pending cases" of default in meeting export obligations and directed the respondents to verify the petitioner's application and determine eligibility for regularization and refund as per the Public Notice. The judgment highlighted that the petitioner's timely application and fulfillment of conditions before the deadline made them eligible for consideration. The Court found the respondent's argument of ineligibility untenable, given the pending status of the matter and the petitioner's compliance with the Public Notice's requirements.

Ultimately, the Court allowed the writ petition, directing the respondents to verify the petitioner's application and make necessary decisions regarding regularization of the default in export obligation and entitlement to refund as per the Public Notice dated 12-8-2013. The judgment did not impose any costs, concluding the matter in favor of the petitioner based on the interpretation of the Public Notice's applicability to their case and the fulfillment of necessary conditions within the specified timeline.

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