2005 (12) TMI 98 - SC - Customs

Transfer of EXIM Licence - respondent is a transferee of a licence issued to Amity International - appellant s contention that the advance licence had been fraudulently obtained by the Amity International has not resulted in any investigation by the appellant against the Amity International - High Court followed the decision of Titan Medical Systems Pvt. Ltd. v. Collector of Customs New Delhi 2002 (11) TMI 108 - SUPREME COURT OF INDIA - Held that - In view of the fact that the issue raised by the learned Solicitor General is an issue of fact the same should have been specifically pleaded by the appellant in answer to the writ petition filed by the respondent. This not having been done in the circumstances of the case we do not interfere with the decision of the High Court. However we make it clear that before the refund is made by the appellant to the respondent the respondent shall produce a copy of the original licence if not already produced - Decided against Revenue.

Summary

Issues:
1. Fraudulent obtaining of license by transferee
2. Permission to clear imported goods subject to duty payment
3. Appeal against writ petition decision
4. Expiry of license and rejection of transfer application
5. Failure to raise a specific point before the High Court

Issue 1: Fraudulent obtaining of license by transferee
The respondent, a transferee of a license issued to Amity International, faced issues with clearing imported goods due to allegations of fraudulent license acquisition. The High Court allowed the respondent to clear the consignment upon payment of duty during the pendency of the writ petition. The Single Judge held that the appellant's claim of fraudulent license acquisition by Amity International lacked investigation, following the precedent set by the Supreme Court in a previous case. Consequently, the duty paid by the respondent was directed to be refunded.

Issue 2: Permission to clear imported goods subject to duty payment
During the writ petition proceedings, the respondent was granted interim relief by the High Court to clear the imported goods upon payment of duty, pending the final decision. This interim order was crucial in allowing the respondent to proceed with the consignment clearance process.

Issue 3: Appeal against writ petition decision
The appellant appealed the writ petition decision before the Division Bench of the High Court. However, the Division Bench upheld the Single Judge's decision, emphasizing that no action had been taken against Amity International and the license had not been cancelled, in line with the legal principles established in a previous case.

Issue 4: Expiry of license and rejection of transfer application
The Solicitor General contended that the license had expired, and the respondent's application for license transfer had been rejected by the appellant. This raised doubts about the eligibility for duty refund claimed by the respondent, as per the appellant's argument.

Issue 5: Failure to raise a specific point before the High Court
The respondent's counsel highlighted that the point regarding the expiration of the license and rejection of the transfer application was not raised before the High Court at any stage. It was emphasized that no action had been taken against Amity International, and the appeal should be dismissed based on these grounds.

In conclusion, the Supreme Court disposed of the appeals without any order as to costs. The Court acknowledged the factual issue raised by the Solicitor General but declined to interfere with the High Court's decision due to the lack of specific pleading by the appellant. The Court directed the respondent to produce a copy of the original license before any refund could be made by the appellant.