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TMI Blog2018 (3) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ird respondent would consider the supply of gold under the said scheme subject to the petitioner providing a Fixed Deposit/Bank Guarantee towards the customs duty. This will be used as a cover for the third respondent's liability under the Bond and the Bank Guarantee, except on duty free gold to be supplied to the petitioner. The third respondent stated that the security would be discharged on release of the Bond and the Bank Guarantee by the Customs authorities. It was clarified that the third respondent supplies gold as replenishment of the quantity of gold jewellery exported and it has no relation to the percentage of customs duty of gold being sold in the market. As such the third respondent is not liable for any change in customs duty or incidental losses/gains. Interest of justice would be served if the petitioner executes an Indemnity Bond, indemnifying respondent No.3 against all the claims that would be raised by the competent authorities in the Central Government and exercising powers under the Customs Act, 1962, the Central Excise Act, 1944 and the FTDR Act, 1992 - petition disposed off. - Writ Petition No. 12066 of 2017 - - - Dated:- 20-2-2018 - S.C. DHARMADHIK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. After setting out these paragraphs of the FTP, the petitioner has referred to a Notification dated 23 2 2017, amending para 4.34 (i) of the FTP. 8. It is stated that in terms of this amendment, after exporting the consignments of gold jewellery, the petitioner became entitled to receive 169 Kgs. of replenished gold. 9. The petitioner submitted seven applications to the third respondent for grant of replenished gold. All the proofs and supporting documents were also supplied and the petitioner awaited the fruits of the policy. They even addressed a reminder but the third respondent responded, inter alia, stating that the transaction under the Replenishment Scheme is currently under investigation by the Central Government Agencies. It, therefore, insisted that the petitioner provide a security, namely, Fixed Deposit/Bank Guarantee towards the customs duty which will be used as a cover for its liability. Then it was clarified that the third respondent is not liable for any change in the customs duty or incidental losses/gains. 10. The correspondence continued and in some of the letters the petitioner was called upon by the third respondent to submit documentary evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty free input to make dutiable goods. Therefore, these are not irrelevant documents as stated by you. (vi) You have told us several times that you have claimed only the excise duty paid on finished product (i.e. 12.5%) but not claimed any input rebate (i.e. 9.35%). In fact, you have submitted to us a sample excise invoice on 3rd April where a mention has been made about your filing ARE 2 to avail rebate. As ARE 2 is a combined statement of claim for both types of rebates, please submit us a copy of ARE 2 to establish that you have not availed the input rebate. In case you submit the declaration that you have not availed cenvat credit or input rebate, duly supported by the documents as mentioned earlier, we can process your requests immediately as we have already done for all similar cases. In case you submit the declaration for having availed cenvat credit or input rebate, we shall consider release of gold following the procedure as laid down in the aforesaid Notification. In case you fail to submit the desired declaration within a week (with excise invoices and ARE 1 / ARE 2 in support thereof), we shall be constrained to conclude that you have failed to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inated Agency justifiably insisted on security from the petitioner. Eventually if that condition is found to be fulfilled, the security will be returned but if the petitioner fails to comply with this condition, then that security will be used by the Nominated Agency as a cover for the Bank Guarantee which has been submitted by the third respondent to the Customs authority. Since the importer of the goods (Nominated Agency) has to furnish a Bank Guarantee to the Customs in cases of duty free import and such securities are forfeited in cases of violation of the conditions attached with the import of duty free goods, that the insistence by respondent Nos.1 and 2. Therefore, the imposition of the condition is justified. 19. Then an affidavit is filed by respondent No.3. This affidavit is, firstly, stating that the petitioner has an alternate and equally efficacious remedy of an appeal. The third respondent has denied each and every statement and allegation in the petition. The petitioner ought to have approached the authorities and namely, the Director General of Foreign Trade ( DGFT , for short). He is the final authority, particularly on the implementation of the FTP. It is in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment Scheme. The documents are in relation to exports for the period July, 2016 to January, 2017. 26. It is in these circumstances and because this e mail copy could not be inadvertently attached, that this further reply. 27. There are detailed submissions which have been made with regard to the complaint against the third respondent and lodged by the petitioner with the DGFT. 28. It is on the above materials that we have heard Mr. Prakash Shah, appearing for the petitioner, Mr. Mishra, appearing for respondent Nos.1 and 2 and Mr. Thacker, appearing for the third respondent. At the outset, Mr. Thacker, raising a preliminary objection to the maintainability of the petition submitted that the version of the petitioner, as set out in the petition and its correspondence, is completely one sided, apart from being false. That is a misleading picture given by the petitioner, particularly with regard to the involvement and role of the third respondent. Therefore, no relief be granted to the petitioner in this petition when the act is contrary to the FTP and the scheme. Mr. Mishra also supports this stand and submits that there is nothing erroneous or illegal in insisting on a gua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id scheme subject to the petitioner providing a Fixed Deposit/Bank Guarantee towards the customs duty. This will be used as a cover for the third respondent's liability under the Bond and the Bank Guarantee, except on duty free gold to be supplied to the petitioner. The third respondent stated that the security would be discharged on release of the Bond and the Bank Guarantee by the Customs authorities. 33. It was clarified that the third respondent supplies gold as replenishment of the quantity of gold jewellery exported and it has no relation to the percentage of customs duty of gold being sold in the market. As such the third respondent is not liable for any change in customs duty or incidental losses/gains. 34. We have also noted the stand of respondent Nos.1 and 2, as set out in the affidavit in reply and particularly referring to para 4.34 (i) of the Notification dated 23 2 2017. 35. We are of the firm view that in the facts and circumstances peculiar to the petitioner's case, particularly bearing in mind that in the past such replenishment has been granted to the petitioner, interest of justice would be served if the petitioner executes an Indemnity Bond, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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