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TMI Blog2016 (5) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... against Advance Licences, a DEEC book is issued along with Advance Licence and at the time of import and export against the Advance Licence entries are made in the DEEC book by Customs to keep record of import/export made against it. Obviously the petitioner, even before the Advance Licence was issued, could not have the DEEC book and it is clear as sky that the exports even if made were not against the Advance Licence and the petitioner is clearly in violation of its obligation thereunder and there is no reason for interference with the orders impugned. Therefore, it is clear that the export effected by the petitioner prior to the date of issuance of Advance Licence cannot be considered in fulfillment of Export Obligation under the Advance Licence. The whole case of the petitioner was premised on said edifice and fails. There is no error in the factual finding of the Statutory Authorities, of the petitioner having not fulfilled the Export Obligation. Resultantly, the impugned demand is justified. - Decided against the petitioner - W.P.(C) No. 8417/2015 & CM No. 18002/2015 (for stay). - - - Dated:- 18-5-2016 - MR. RAJIV SAHAI ENDLAW J. For the Appellant: Mr. Biswajit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y with 15% interest per annum from the date of import of the first consignment till the date of payment; (v) the petitioner fulfilled the export obligation within the stipulated period i.e. by 20th April, 1999; (vi) the petitioner was issued three Bank Certificates of Export and Realisation (BCER) of a total value of more than the export obligation required to be fulfilled by the petitioner; (vii) that the petitioner was also issued shipping bills dated 16th February, 1999, 29th January, 1999 and 20th April, 1999 against the aforesaid BCER; (viii) the petitioner however misplaced the original shipping bills and though requested the Customs Authorities for duplicates thereof but to no avail; (ix) that the petitioner as per para 7.25 of the Handbook of Procedure (1997-2002), as proof of fulfilment of export obligation was required to submit the BCER and the Duty Entitlement Exemption Certificate (DEEC) book containing details of exports and imports; (x) that by mistake the petitioner could not get the entries of the exports aforesaid made / entered in the DEEC book but since the DEEC book is nothing more than a reflection of entries of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as thus clear that the petitioner did not have the requisite documents required to prove that it had fulfilled the export obligation in respect of the advance licence aforesaid. 6. The petitioner as aforesaid availed of the statutory review but which has been rejected vide impugned order dated 21st / 24th August, 2015 on the grounds of inadmissibility observing: (i) that the petitioner before the Review Authority also, inspite of dismissal of the statutory appeal for non-submission of documents had only produced copy of MODVAT non-availment certificate; and, (ii) no ground for review was made out. 7. It is the contention of the petitioner before this Court in the petition; (i) that the three BCER submitted by the petitioner established export of goods of the value more than for which export obligation was imposed under the advance licence aforesaid; (ii) that all the said Bank Certificates bear the same advance licence number and that export proceeds were received by the Bank and thus the question of non-fulfillment of the export obligation did not arise; that the exports were also established by the copies of the shipping bills; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on no.5 of the Advance Licence; the petitioner did not submit the original DEEC book (Part-II) of exports, it proves that the petitioner has not fulfilled the export obligation in terms of quantity; (iv) it is also to be ascertained whether the money earned in the BRCs is for that quantity of exports which are allowed in the Advance Licence; (v) without fulfillment of export obligation in terms of quantity, the petitioner might have realised foreign exchange but the export has to be fulfilled in terms of the quantity; (vi) copies of the shipping bills submitted do not contain the Advance Licence number and thus the quantity wise export obligation has not been proved; (vii) the DEEC book containing the details of exports and imports duly attested by the Customs Authority is the primary / major document to prove the fulfillment of actual Export Obligation in terms of quantity; and, (viii) that ample opportunities were given to the petitioner. 9. The senior counsel for the petitioner argued (i) that the show cause notice dated 31st March, 2004 did not contain any proposal for levying penalty; (ii) all that the petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner exported the same goods which was required to export; attention in this regard is drawn to the BCER and to the copies of Bills of Lading. 12. What immediately becomes vivid on encapsulation as aforesaid of the controversy is, that the petitioner also admits that what it was required as per the Rules to submit in proof of fulfillment of export obligation, it has not submitted. The petition does not also challenge the Rules requiring the petitioner to submit particular documents in fulfillment of export obligation and which the petitioner is unable to submit. However what the petitioner wants this Court to do, without challenging the Rules and without fulfilling the requirement thereof, is to nevertheless relieve the petitioner of the rigors of non-fulfillment of export obligation. Significantly it is also not the case of the petitioner that even if it is found to be in non-fulfillment of the export obligation it is not liable for the demand imposed on it. What the petitioner further wants this Court to do in exercise of its power of judicial review under Article 226 of Constitution of India is to sit in appeal over the concurrent finding of fact of the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Section 11 of the FTDR Act providing for contravention of the provisions thereof and the rules, orders and export and import policy was not attracted as there was no contravention on the part of the importer. 15. The counsel for the respondent is correct in contending that the facts of the present case bear no similarity whatsoever to Dencap Electronics (P) Ltd. Here, the petitioner is not pleading any circumstances beyond its control for non-fulfillment of the export obligation. It is also not the case of the petitioner that the import duty, in lieu whereof it was to fulfill the export obligation, has been paid by it or recovered from it, for it to be said that the obligation to export no longer survives. Rather, it is the plea of the petitioner that it has fulfilled the export obligation though is unable to prove the same in the manner required by law. 16. Similarly in Mohan Machines Ltd. there was no doubt that the export obligation had been fulfilled and it was in view thereof that it was held that for technical lapses the petitioner should not be penalised. 17. However nothing on record of the present case leads to the conclusion least suggest that expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated to have taken place on 16th February, 1999, 29th January, 1999 and 20th April, 1999. 19. Supreme Court as far back as in S.B. International Limited Vs. Assistant Director General of Foreign Trade (1996) 2 SCC 439 held on an examination of the Duty Exemption Scheme under the Imports and Exports Policy of the Government of India that; (i) the object behind the scheme is to enable the exporter to import raw materials, components etc. required for the purpose of producing goods for export; (ii) it is a facility provided by the Government - an incentive; (iii) there is no right to advance licence apart from the policy; (iv) no citizen has a fundamental right to import, much less import free of duty; (v) by granting the advance licence, the Licensing Authority tells the licensee I am permitting you to import raw material, components etc. of a particular value free of duties but you must export goods of a particular value within a particular date. If you fail to do so, you will be liable to levy of penalties and other action according to law ; (vi) the duty free import of raw materials etc. is permitted to enable ..... 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