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TMI Blog2015 (11) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents : Mr.R.Aravindan ORDER This Writ petition has been filed for issuance of a Writ of Certioari, calling for the impugned summon issued by the 2nd respondent in file No.DRI/CZU/TTN/48/05/INT-1/2015, dated 03.08.2015 and quash the same as illegal, incompetent and arbitrary. 2. The case of the petitioners is that the petitioners company is a manufacturer of spinning yarn and its related works. The company imported machines from the foreign countries through Tuticorin Sea Port. The company is having a valid IEC Code 2890000656 allotted through Ministry of Commerce, Indian Republic. The company has availed duty exemption from the Indian Customs for importing machines and thereafter, goods were cleared from the Tuticorin Port Trust by the Customs Authority and for which, the company has executed a letter of undertaking and bank guarantee in favour of the Ministry of Revenue for the imported goods. After installing the imported machines, the company has obtained Installation Certificates from the Central Excise Department. The company has obtained exemption from Customs Duty after fulfilling Export Obligation, imposed by the Ministry of Commerce, Indian Republ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners are before this Court with the present Writ petition. 5. The respondents have filed a counter affidavit. In the counter affidavit it is stated that Specific Intelligence has been developed by the Directorate of Revenue Intelligence (DRI), Tuticorin Regional Unit about the petitioners . The petitioners had imported machineries through Tuticorin Port without payment of customs duty by availing import duty exemption / concession under the Customs notification issued under Section 25(1) of the Customs Act, 1962 as applicable to the Export Promotion Capital Goods (EPCG) Scheme. As per the terms of customs duty exemption, the importer is required to undertake specific export obligation to the extent of eight times import duty saved and to fulfill other conditions prescribed in the exemption notification. 6. It is stated in the counter affidavit that the intelligence pointed out that the importer had obtained Export Obligation Discharge Certificate (EODC) from the Joint Director General of Foreign Trade (JDGFT), Madurai, by submitting irrelevant export documents, showing exports have been done on their behalf and in order to evade customs duty payable for non-fulfillment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exporters shall be directed to export goods in the name of the EPCG licence holder. However, the export through third party as defined in Chapter 9 of the Policy is also permitted under the EPCG scheme. 10. Chapter 9 of the Policy defines the Third-party exports as exports made by an exporter or manufacturer on behalf of another exporter(s). In such cases, export documents such as shipping bills, etc., shall indicate the name of both the manufacturing exporter/manufacturer and third party exporter(s). However, the petitioners, in order to escape for payment of the duty involved on the un-fulfilled portion of the EO, has conspired with the assistance of the consultant and the above two exporters, managed to get their EPCG licence numbers, filed false certificates along with the 2nd petitioner and got their export obligation discharged and shared the benefit. 11. It is stated that the summon had been issued to the Executive Director of the petitioners company directing them to appear before the authority. Subsequently, another summon was issued requiring the appearance of the petitioner on 03.08.2015. It is stated that the Central Board of Excise and Customs (CBEC) vide Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer of customs who is assigned those functions by the Board or the (Commissioner of Customs). In this regard, the learned Senior Counsel appearing for the petitioners also invited the attention of this Court to the notifications issued under Customs Act, 1962 and submitted that Senior Intelligent Officer has no power to function under Section 108 of the Customs Act. The learned Senior Counsel further submitted that Section 148 of the Customs Act deals about the issuance of summons and production of the documents. Section 108 speaks about any gazetted officer of the customs, who has the power to summon the concerned, either to give evidence or produce the documents for enquiry under the Act and the Senior Intelligence officer cannot be construed as customs officer. Hence, he has no power to issue sommon. 14. In support of the contention the learned Senior Counsel appearing for the petitioner relied on a judgment reported in 2011(265) ELT 17 (SC) (Commissioner of Customs Vs. Sayed Ali). 15. The learned standing counsel appearing for the respondents submitted that as per the Notification No.31 of 1997-Cus.(N.T.), dated 07.07.1997 in exercise of powers conferred under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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