9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (3) TMI 325 - HC - CustomsAdvance Authorization Scheme - rejection of application for condonation of the procedural lapse of non-generation and filing of Bills of Export against the supply of goods to SEZ Unit - HELD THAT - In the present case, the facts reveal that the petitioners have received purchase order from M/s DIC Fine Chemical Private Limited, a SEZ Unit situated in Gujrat and based upon the purchase order, the petitioner applied to the Director General of Foreign Trade for issuance of Advance Licences / Authorizations. Advance Authorizations were issued by the Officer of Joint Director General of Foreign Trade, Bhopal in the year 2012 13 and the petitioners, as stated by them, imported the specified goods / raw material permitted under the Advance Authorization required for manufacture of said Soya Long Oil Alkyd Regin to be supplied to SEZ Unit. The Aayat Niryat Form provides for submission of proofs by furnishing Bill of Export . The petitioners were required to submit proof of export to SEZ Unit and the proof of export is mentioned in Form 98-VI of the Custom Manual - Not only this, as per Section 30 (3) of the SEZ Rules, Bill of Export is a mandatory requirement and no claim can be accepted in absence of proper authorization. Undisputedly, the petitioners have failed to comply with the aforesaid requirement and for the reasons best known to the petitioners, the petitioners have not impleaded the SEZ Unit, Dahej as respondent, which is a necessary party. Whether the goods were received at SEZ Unit, Dahej or not, could have been answered by the SEZ Unit, Dahej only. The petitioner have also not complied various statutory provisions by not furnishing Bill of Exports. In the present case, the petitioners have opted not to implead SEZ as a respondent, and therefore, as there is no verification on the part of the Officer of the SEZ, the petitioners are not entitled for any relief of whatsoever kind on basis of the judgment delivered in the case of Larsen Toubro 2017 (10) TMI 40 - BOMBAY HIGH COURT . The petitioners' stand is that the petitioners have exported the goods manufactured through M/s DIC Fine Chemical Limited, a SEZ Unit at Dahej, and therefore, they are not liable to pay any duty keeping in view the Foreign Trade Policy, 2004 2009. The proof required for the purpose is Bill of Export and the petitioners have not been able to submit the Bill of Export. Whether the petitioners have supplied goods to the SEZ Unit, Gujarat or not, can only be looked into after petitioners file a reply to the Department in respect of the letters issued to the petitioners. It is purely question of fact and can be looked into by the competent authority - In the considered opinion of this Court, the question of interference, at this stage in the peculiar facts and circumstances of the case, does not arise. Petition dismissed.
Issues Involved:
1. Rejection of application for condonation/relaxation of procedural lapse of non-generation and filing of Bills of Export. 2. Requirement of Bill of Export for discharge of export obligation. 3. Non-compliance with statutory provisions and Foreign Trade Procedure Hand Book. 4. Non-impleadment of SEZ Unit as a necessary party. 5. Applicability of the judgment in the case of Larsen & Toubro Limited v/s Union of India & Others. Detailed Analysis: 1. Rejection of Application for Condonation/Relaxation of Procedural Lapse of Non-generation and Filing of Bills of Export: The petitioners were aggrieved by the orders dated 11.09.2018 and 20.11.2018 passed by the Policy Relaxation Committee (PRC), Directorate General of Foreign Trade (DGFT), which rejected their request for condoning the procedural lapse of non-generation and filing of Bills of Export. The petitioners argued that they were unaware of the requirement to prepare Bills of Export at the time of supply to the SEZ Unit and requested the SEZ authorities to provide the necessary Bills of Export retrospectively, which was refused. 2. Requirement of Bill of Export for Discharge of Export Obligation: The petitioners contended that they had fulfilled their export obligations by supplying goods to the SEZ Unit, which should be treated at par with export. However, they failed to submit the Bill of Export as proof of export, which is a mandatory requirement under the Foreign Trade Procedure Hand Book and Section 30(3) of the SEZ Rules. The PRC and DGFT insisted on the submission of Bills of Export for the discharge of export obligations and directed the petitioners to regularize the license by paying custom duties and applicable interest. 3. Non-compliance with Statutory Provisions and Foreign Trade Procedure Hand Book: The petitioners were required to comply with the Foreign Trade Procedure Hand Book Proviso 4.25, which mandates the submission of prescribed documents, including the Bill of Export, in support of fulfillment of export obligations. The petitioners failed to furnish the Bill of Export, which is a crucial document for proving export to the SEZ Unit. The statutory provisions, including Section 30(3) of the SEZ Rules, emphasize the necessity of the Bill of Export for any claim of export to be accepted. 4. Non-impleadment of SEZ Unit as a Necessary Party: The court noted that the petitioners did not implead the SEZ Unit, Dahej, as a respondent, which is a necessary party to ascertain whether the goods were received at the SEZ Unit. The SEZ Unit's verification was essential to determine the actual receipt of goods, and the absence of this party weakened the petitioners' case. 5. Applicability of the Judgment in the Case of Larsen & Toubro Limited v/s Union of India & Others: The petitioners relied on the judgment delivered by the Bombay High Court in the case of Larsen & Toubro Limited v/s Union of India & Others (W.P. No.14375/2016) dated 12.09.2017, where the requirement of Bill of Export was waived. However, the court distinguished the present case from the Larsen & Toubro case, noting that in the latter, the Central Excise Department and SEZ officials had certified the receipt of goods, which was not the case here. Additionally, the SEZ Unit was not made a party in the present case, and there was no verification from the SEZ authorities. Conclusion: The court concluded that the petitioners failed to comply with the mandatory requirement of submitting the Bill of Export and did not implead the SEZ Unit as a necessary party. The petitioners' reliance on the Larsen & Toubro judgment was found to be misplaced due to distinguishable facts. Consequently, the court dismissed the writ petition and directed the petitioners to comply with the statutory provisions by submitting the required documents or paying the applicable duties and interest. The connected writ petition (W.P. No.18252/2017) was also dismissed.
|
