2021 (5) TMI 737 - HC - Customs

Trading House - license for import of Maize in concessional rate of duty - allegation of breach of the actual user condition in the licences by the petitioner - petitioner sought adjustment of amount deposited during investigation towards the demand - HELD THAT - The licences were granted by respondent No.1 subject to the 'actual user' condition and other usual conditions of import. This Court noted that all the show cause notices emanated from the alleged violation of the 'actual user' condition contained in the two licences. Therefore, High Court was of the view that it would be in the fitness of things if the two notices dated 30.08.2013 with regard to the licences be first concluded on an expeditious basis and thereafter the notice dated 04.09.2013 issued by the Directorate of Revenue Intelligence be adjudicated, if necessary. The writ petition was disposed of with a direction to respondent No.1 to first adjudicate the show cause notices dated 30.08.2013 on all issues expeditiously after giving the petitioner an opportunity of personal hearing. It was clarified that depending upon the outcome of the said proceeding, the show cause notice dated 04.09.2013 issued by the Directorate of Revenue Intelligence would be adjudicated. When respondent No.1 adjudicated the show cause notices, it noted the proceedings before the Andhra Pradesh High Court but only stated that public notice No.47 dated 18.05.2011 indicated that the 'actual user' condition was made non-mandatory with effect from 18.05.2011. Either the stand taken by Union of India and Director General of Foreign Trade before the Andhra Pradesh High Court was not brought to the notice of respondent No.1 or he had conveniently overlooked the stand so taken. Be that as it may, respondent No.1 took the stand that it was beyond the purview of the adjudicating authority to adjudicate on the legality of the conditions imposed in the import licences and therefore, he refrained from deciding on the matter of legality of the 'actual user' condition. However, after referring to the said condition and the provision of rule 13 of the Foreign Trade (Regulation) Rules, 1993, respondent No.1 held that petitioner had violated the actual user condition of the licences thereby making it liable for action under section 11(2) of the Act. Consequently, the penalty was imposed. Validity of the actual user condition or whether it was mandatory or not is the central issue. Refusal of respondent No.1 to adjudicate on this issue is not only violative of the directions of this Court as contained in the order dated 20.11.2013 but also amounts to non-exercise of jurisdiction vested in him. As rightly pointed out by this Court in the order dated 20.11.2013 the core issue is the insertion of 'actual user' condition in the two licences - whether such insertion is legally permissible or without entering into this aspect, whether such condition is directory or mandatory are issues which are required to be gone into by respondent No.1. Failure to do so has occasioned non-exercise of jurisdiction. The matter requires to be heard afresh on all issues as directed by this Court - Matter is remanded back to respondent No.1 for a fresh decision in accordance with law after giving due opportunity of hearing to the petitioner - Petition allowed by way of remand.

Issues Involved:
1. Validity of the 'actual user' condition in the import licenses.
2. Legality of the orders issued by the Joint Director General of Foreign Trade, Additional Director General of Foreign Trade, and Director General of Foreign Trade.
3. Entitlement to a refund of customs duty paid under protest.
4. Compliance with procedural directions issued by the High Court in adjudicating the show cause notices.

Issue-wise Detailed Analysis:

1. Validity of the 'actual user' condition in the import licenses:
The petitioner challenged the insertion of the 'actual user' condition in the import licenses issued for maize (corn). The petitioner argued that the 'actual user' condition was non-mandatory under the tariff rate quota scheme since 2003, as clarified by public notice No.47 dated 18.05.2011. The respondents, however, contended that the 'actual user' condition was valid until 18.05.2011 and that the petitioner was aware of and had agreed to this condition when applying for the licenses. The court noted the contradictory stands taken by the respondents in different High Courts and emphasized that Union of India and the Director General of Foreign Trade must speak in one voice. The court found that respondent No.1 had failed to adjudicate the validity of the 'actual user' condition, thus violating the directions of the High Court and resulting in non-exercise of jurisdiction.

2. Legality of the orders issued by the Joint Director General of Foreign Trade, Additional Director General of Foreign Trade, and Director General of Foreign Trade:
The petitioner sought the quashing of three orders: the order-in-original dated 14.02.2014, the order-in-appeal dated 24.07.2015, and the order in review dated 04.11.2015. The court found that respondent No.1 had refrained from deciding on the legality of the 'actual user' condition, which was central to the case. This failure to adjudicate on all issues, as directed by the High Court, rendered the order-in-original unsustainable. Consequently, the subsequent orders in appeal and review, which upheld the initial order, were also set aside.

3. Entitlement to a refund of customs duty paid under protest:
The petitioner had paid a significant amount of customs duty under protest due to the alleged violation of the 'actual user' condition. The court noted that the issue of refund of customs duty would be subject to the fresh decision to be taken by respondent No.1 upon remand. The court did not delve into this issue in detail, as it was contingent on the outcome of the remanded proceedings.

4. Compliance with procedural directions issued by the High Court in adjudicating the show cause notices:
The High Court had previously directed respondent No.1 to adjudicate the show cause notices on all issues, including the validity of the 'actual user' condition. However, respondent No.1 failed to comply with this direction, leading to a non-exercise of jurisdiction. The court emphasized that the core issue of the 'actual user' condition needed to be addressed, and the failure to do so necessitated the setting aside of the impugned orders and a remand for fresh adjudication.

Conclusion:
The High Court set aside and quashed the impugned orders dated 14.02.2014, 24.07.2015, and 04.11.2015. The matter was remanded back to respondent No.1 for a fresh decision on all issues, including the validity of the 'actual user' condition, within three months. The court allowed the writ petition to the extent of remanding the matter for fresh adjudication but did not award any costs.

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