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TMI Blog2014 (10) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... or the development of the software technology park and the transfer of 74% of the share of the petitioner to the said company, on the understanding that the transferee company had to fund the development of the park. Thereafter, the petitioner made an application in November 2005 to the Chairman of the Inter Ministerial Standing Committee through the office of the Director of Software Technology Park of India, Chennai, for setting up an information technology park under the STP Scheme. 3. The petitioner also entered into two agreements dated 7.12.2005 and 25.1.2006 with Pacifica Infrastructure Company Private Limited and another company by name E-lights Technopark Private Limited for the effective funding and implementation of the project. 4. On 17.10.2006, the Inter Ministerial Standing Committee granted in-principle approval for the setting up of the infrastructure facility under the STP Scheme in 'Freedom IT Campus '. The Government of India, in turn, granted permission by a communication dated 22.10.2006 in terms of the Foreign Trade Policy, 2004-2009. As per the letter of permission so granted, the petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and also granted an interim stay of further proceedings. The order of interim stay continues till date. 9. During the pendency of the above writ petition, the application made by the petitioner on 10.6.2010 to the Software Technology Parks of India and the application made by the special purpose vehicle, which purchased the ISP facility for renewal and extension of the letter of permission for the period of two years were forwarded to the Inter Ministerial Standing Committee. Originally, the applications were not entertained by the Inter Ministerial Standing Committee. But, again the applications were forwarded by the Software Technology Parks of India on 14.3.2012, indicating that the licence for the facility had expired. Therefore, the case was taken up by Inter Ministerial Standing Committee in its meeting held on 5.7.2012. In the meeting, the Committee approved the letter of permission for a further period of four years from its expiry i.e 21.12.2008. The minutes of the meeting were also communicated by a letter dated 24.7.2012 of the Department of Electronics and Information Technology of the Ministry of Communications and Information Technology. Upon receipt of a copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the transferees namely E-lights Technopark Private Limited and Pacifica Infrastructure Company Private Limited. The show cause notice fixes responsibility not only upon the petitioner, but also seeks to levy penalty upon the transferees in terms of Section 112(b) of the Customs Act, 1962. The transferees have no qualms about giving a reply to the show cause notice and facing an adjudication on merits and in accordance with law. Therefore, I do not think that merely because a transfer of the letter of permission is permitted, the Commissioner of Central Excise forfeited his jurisdiction to initiate proceedings under Sections 111 and 112 of the Customs Act, 1962. 16. Admittedly, the petitioner is only an infrastructure service provider. The very proposal presented by the petitioner in their letter dated 26.11.2005 was to develop, operate and maintain an information technology park. But, even before the submission of the said proposal, the petitioner entered into an agreement with Pacifica Infrastructure Company Private Limited on 30.9.2005 itself for the transfer of their 74% undivided interest in the land and building. Subsequently, the petitioner also entered into one more a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.1.2007 also permitted only the petitioner to make use of the imported capital goods, etc., at the private bonded warehouse. There were several obligations incorporated therein that could have been complied with only by the petitioner. 21. Relying upon Paragraph 6.15 of Foreign Trade Policy, 2004-2009, it is contended by Mr.B.Kumar, learned Senior Counsel appearing for the petitioners that in case an export oriented unit is unable to utilize the goods and services imported or procured from the domestic tariff area, it can be transferred to another export oriented unit. Therefore, it is his contention that transfer, per se, was not prohibited by the Foreign Trade Policy. He also drew my attention to Paragraph 6.18 of the Foreign Trade Policy wherein the export oriented units were given the option to go out of the scheme with the approval of the Development Commissioner. 22. But, I do not know as to why the petitioner cannot raise all these objections in response to the impugned show cause notice, if transfer is permitted. If the liability to levy penalty would arise only as against the transferees, the petitioner can always take up this issue in reply to the show cause notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Board's circular in Circular No.21/95 dated 10.3.1995, under which, a demand of duty can be confirmed only after a definite conclusion regarding non fulfillment of export obligations was arrived at by the Development Commissioner. 28. But, the said circular dated 10.3.1995 was obviously causing inordinate delay in effecting duty recovery. Therefore, the issue was reviewed in consultation with the Department of Commerce. As per the said decision, the Development Commissioner was to take a final decision after the block of five years, with respect to fulfillment of export obligation. But, the decision is to be taken as far as possible within six months , but positively within one year. Paragraph 6 of the circular dated 24.7.2008 requires reproduction and hence, it is reproduced as follows : "In terms of Board's circular No.21/95 - Cus dated 10.3.1995 (F.No.307/2/91-FTT), demand of duty can be confirmed only after a definite conclusion regarding non fulfillment of export obligation is arrived at by the Development Commissioner. The requirement of a definite conclusion by the Development Commissioner before Customs/Central Excise Authorities can initiate action, at times, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuine exporter under the circular bearing No.12/2008, cannot be used as a shield by the petitioner. Hence, the first writ petition challenging the show case notice is liable to be dismissed. 31. As a matter of fact, there is one more reason as to why the first writ petition deserves to be dismissed. The show cause notice impugned therein is dated 18.4.2011. The petitioner kept on dillydallying for a period of more than a year seeking time to submit objections. It is only in August 2012, after a gap of about 16 months of dillydallying, that the petitioner came up with the first writ petition. Therefore, there are no bona fides in the challenge made by the petitioner to the show cause notice. 32. The issue can also be looked at from a different angle. The first respondent issued the impugned show cause notice to the petitioner as well as the transferees. In the event of the first respondent fixing the responsibility jointly and severally upon all of them, the petitioner can always proceed against the transferees in accordance with the terms and conditions of the contract that they have with the transferees. Since the exemption was granted only to the petitioner on condition that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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