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TMI Blog2013 (3) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of the DEPB scheme by virtue of a restriction imposed on 22-9-2011, made effective nine days later. The goods were exported and the consideration was received in respect of the earlier shipments covered by the three bills; bank realization certificate towards export proceeds in respect of the said shipping bills were received on 6-7-2011. In the circumstances, it would be unreasonable and unfair for the respondents, to continue to insist that the Bank guarantee for the amount of Rs. 2 crores should be maintained. - Decided in favor of assessee. - W.P. (C) No. 744 of 2012 and C.M. No. 1628 of 2012 - - - Dated:- 31-8-2012 - S. Ravindra Bhat and R.V. Easwar, JJ. Shri Pradeep Jain, Advocate, for the Petitioner. Shri Bhupesh Narula, Advocate with Ms. Geetanjali Sharma, for the Respondent. [Order per : S. Ravindra Bhat, J]. - The petitioner seeks directions against the respondent (hereinafter called as Customs Authority) for permitting the provisional release and export of its goods pursuant to the order of Central Excise Service Tax Appellate Tribunal (CESTAT) dated 8-12-2011. 2. The petitioner is an export house functioning for the last 11 years. They had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 8-12-2011 and the requirement of furnishing bank guarantee to the extent of 25% of the bond amount in respect of the subsequent shipping bills dated 15-6-2011 was held to be unjustified. The Tribunal s reasoning is as follows : 8. After considering the submissions made by both sides, we find that the appellant had already given a bank guarantee of Rs. 2 crores to cover the earlier three consignments. The exports are being made under DEPB scheme. Even if the Revenue s case is proved the consequence of the same would be denial of said DEPB. The Revenue has already drawn samples from the present consignment, in which case provisional release of the same would not cause any adverse affect to the Revenue s case. Even in terms of the Board s Circular it stands observed that inordinate detention of the seized goods entered for exportation results in delays in fulfillment of export order and at times cancellation of such orders. Detention of goods also adds to congestion in ports besides payment of demurrages charges to the custodian. 9. We also note, the appellant s contention in respect of earlier exports, they have realized the full export value from their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptember, 2011. The issue was further clarified vide Para 14 of the CBEC s circular No. 42/2011-Cus., dated 22-9-2011 which reads as under : all exports under DEPB Scheme upto and including September 30, 2011 where the Let Export Order (LEO) has been issued by the Customs officer shall be eligible for the issue of DEPB Scrips and that the export consignments with Let Export Order after this date would no longer the eligible for benefits under the DEPB Scheme. As Evident from a bove it is not possible to permit export under the DEPB Scheme as no LEO was given in your case on/before the permitted date. Export of the goods covered under SB No. 4119009, dated 15-6-2011 can be made either on a free Shipping Bill or under any other export promotion scheme of your choice which is currently valid. The export of goods shall be permitted provisionally subject to the outcome of investigation being conducted by Customs Preventive, Commissionerate on valuation and any other issue. You are therefore requested to take necessary action at the earliest. Yours sincerely, (Manish Goyal) Additional Commissioner (Expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition could not be faulted with. The order of the Commissioner dated 8-9-2011, no doubt, confirmed provisional release but at the same time affirm the condition of filing bond and bank guarantee. This resulted in the petitioner missing the deadline of 30-9-2011 under the DEPB Scheme; its exports could not be sent out under the LET Order. The respondents could not be found fault with in this regard as the order dated 8-9-2011 was not made in disregard of the facts of the case or without jurisdiction. It was further argued that the petitioner had sufficient time to make the export between 11-7-2011 and 30-9-2011 since no extraneous inevitable circumstances prevented it from availing the LEO before the cut-off date. The Customs Authorities also relied upon a Circular dated 4-1-2011 issued by the Ministry of Finance, Central Government, which outlined the steps and conditions governing provisional release of goods for export purposes specially under the circumstances where Revenue investigations are directed. The relevant part of the said circular reads as follows : 4. Seizure should be resorted to only when the Customs officers have a reason to believe that the goods in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The preceding narrative and discussion would reveal that the Petitioner had initially sought to export consignments through three shipping bills. The Customs authorities did not permit them, and allowed provisional clearance subject to furnishing of 100% bond of the goods value, and a bank guarantee for the sum of Rs. 2 crore. The later set of shipping bills too, were sought to be withheld and a condition to furnish 100% bond with security to the extent of 25% of the value of the goods, by way of bank guarantee was insisted upon. The petitioner was aggrieved, and sought modification of the latter condition. The Commissioner did not take any action; this necessitated filing of a writ petition, which was disposed of by this Court. Pursuant to the directions of this court, the Commissioner issued a speaking order, provisionally allowing the goods to be exported, but without, in any manner modifying the condition with regard to furnishing of bank guarantee. This was challenged in appeal to the CESTAT; the appeal was allowed on 8-12-2012. That order became final. However, the customs authorities did not permit the exports to be made under the scheme which had been applied for, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in any assessment order. In the circumstances, the insistence that the petitioner continue to maintain a bank guarantee for Rs. 2 crore is unwarranted. The customs authorities did not show how this condition, in addition to the bond insisted in the case of the shipment, was essential; the samples necessary for the investigation and issuance of show cause notice, if any, had been drawn. The goods were exported and the consideration was received in respect of the earlier shipments covered by the three bills; bank realization certificate towards export proceeds in respect of the said shipping bills were received on 6-7-2011. In the circumstances, it would be unreasonable and unfair for the respondents, to continue to insist that the Bank guarantee for the amount of Rs. 2 crores should be maintained. 12. For the above reasons, the respondents are directed to treat the export in respect of the shipping bill dated 15-6-2011 (which was the subject matter of the order-in-original issued by the Commissioner of Customs on 8-9-2011 and the order of the CESTAT dated 8-12-2011) as eligible to benefit of the DEPB scheme, and having been exported under it, on LEO basis. The respondents are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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