2010 (3) TMI 476 - HC - Customs

EXIM - Gold imported through nominated agency. Failure to export within 90 days. Plaintiff whether entitled to recover duty interest and penalty. Held that- DGFT not a necessary or a property party in present proceedings and non impleadment not fatal. Agreement stipulating that defendant liable to penalty if EXIM Policy conditions not

Summary

Issues:
1. Jurisdiction of the Court
2. Limitation period for the suit
3. Maintainability of the suit
4. Recovery of principal amount
5. Non-joinder of parties
6. Entitlement to interest
7. Relief sought

Issue 1 - Jurisdiction of the Court:
The defendant did not provide evidence or arguments against the jurisdiction of the court. The court found that since both parties resided and worked in Delhi, where the cause of action arose, the court had territorial jurisdiction to entertain the suit. Thus, this issue was decided in favor of the plaintiff.

Issue 2 - Limitation period for the suit:
The suit sought recovery of a specific amount comprising customs duty and penalty paid by the plaintiff to the Collector of Customs. The court determined that the suit, filed within three years of the payment date, was within the limitation period as per the Limitation Act 1963. Therefore, this issue was decided in favor of the plaintiff.

Issue 3 - Maintainability of the suit:
The defendant contended that the suit did not disclose a cause of action against them. However, the court found that the plaintiff had supplied gold to the defendant, and as per the loan agreement, customs duty and penalty were imposed on the plaintiff due to the defendant's failure to adhere to the EXIM Policy. The cause of action was evident, leading to a decision in favor of the plaintiff.

Issue 5 - Non-joinder of parties:
The defendant argued that the Directorate General of Foreign Trade (DGFT) should have been joined in the suit. The court ruled that the DGFT was not a necessary party, as the defendant failed to establish the necessity of their involvement. Therefore, this issue was decided in favor of the plaintiff.

Issues 4 & 6 - Recovery of principal amount and interest:
The defendant received gold from the plaintiff but failed to export the jewelry within the stipulated period due to an epidemic. The plaintiff invoked bank guarantees as per the agreement. The court found the plaintiff entitled to recover the principal amount comprising customs duty and penalty, along with interest. The plaintiff was not entitled to the sales tax claimed. Interest was calculated at 24% per annum, resulting in a total amount awarded to the plaintiff.

Issue 7 - Relief sought:
The court decreed the suit in favor of the plaintiff, awarding a specific sum with pendentelite and future interest at 12% per annum from the date of filing. Costs were also awarded in favor of the plaintiff, leading to the issuance of a decree sheet and consignment of the file to the record room.