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TMI Blog2018 (11) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner. That is the test for arbitrariness. The petitioners had no occasion to demonstrate their case in the test of arbitrariness. Needless to mention, GST laws are a self contained legislations. The laws were promulgated after necessary constitutional amendments. The preposition that the GST levy subsumes the erstwhile levies of CVD and SAD in lieu of Excise duty and VAT can be of no avail to the petitioner. More so, the petitioner is estopped from claiming relief in view of Para 4.02 of the FTP that AAs are issued in accordance with the policies and procedures in force as on the date of the issue of Advance Authorization. The petitioner's plea of vagueness in the definition of pre-import condition is hollow - The principles of Lex Non Cogitadimpossibilia does not apply in this case as the scheme is an option and not a compulsion. The principles of Lex Non Cogitadimpossibilia does not apply in this case as the scheme is an option and not a compulsion - petitioner is directed to cooperate with the enquiry and DRI is directed to complete the enquiry at the earliest possible time - petition disposed off. - W.P(MD)Nos.18435 to 18438 of 2018 And W.M.P(MD)Nos.16317 to 16322 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the policy and procedures as on the date of the issue of the Authorizations. Para 4.03 of FTP stipulates that the advance authorizations shall be allowed for duty free import of inputs which are physically incorporated in the exported goods. Para 4.13 empowers the government to issue preimport conditions in respect of the exemption and remission schemes under Chapter 4 of FTP. 4.Prior to the introduction of GST on 01.07.2017, duty free exemption under AA issued, was available to most/all the duties leviable at the point of import and the same was governed by Notification No 18/2015-Customs dated 01.04.2015. With the advent of the GST regime, the exemption to IGST/ Compensation cess portion of import duties leviable respectively under Sec 3 (7) and 3(9) of the Customs Tarrif Act got withdrawn to the AA holders. This change was given effect by Notification No 26/2017 Cus dated 29.06.2017 that amended the parent notification No.18/2015-Cus. For administrative exigencies, the relief in respect of these portion of taxes are extended as Input Tax Credits which can be utilized for paying taxes on finished goods or shall be drawn as refund in the event they are exported. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period is cleared on payment of IGST. 7.In the instant case, it appears that the petitioner fulfils Export obligation (EO) and then obtained AA for duty free import of inputs. Therefore the import is actually a replenishment of inputs used in the already exported goods. As such, it was averred that complying with condition No.1 cannot be fulfilled by the petitioner at the time of import of inputs. Similarly, the petitioner expresses difficulty in fulfilment of pre- import conditions in the absence of explicit definition for prehttp:// import condition. Para 4.13 of FTP and Appendix 4J of HBP deals with pre import conditions. A harmonious reading of the above provisions together with the concepts of physical export and actual user condition indicate that pre-import simply means import of raw materials before export of the finished goods to enable the physical export and actual user condition possible and negate the revenue risk that is plausible by diverting the imported goods in the local market. In the perspective of revenue risk, it is not out of place to point out that the eligibility of AAs is determined on the basis of SION Norms or self declaration of the licence holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of the issue of Advance Authorization. 11.Even by not allowing exemption of IGST at the time of import, no benefit in the AA scheme is altered by the Government, though collateral costs get fastened on the petitioner and the likes by way of blockages in cash flow and attendant interest liabilities. And clearly, it is a matter of public policy. And rightly, the choice of policy is for the decision maker, in this case the Government, to make and not for the Court. Nor has been established before this court that the decision suffers from perversity, irrationality or arbitrariness. 12.In view of the above factual and legal matrix of the case, I find that the case laws relied by the petitioners are out of place. The petitioner's plea of vagueness in the definition of pre-import condition is hollow. The intend and purpose of pre-import condition can be made out from Para 4.03 of FTP and Annexure 4 J of the HBP. The multiple schemes available in the FTP is only to have a fine balance between the policy entitlements of the exporters and to safeguard the interests of revenue. The Govind Saran Ganga Saran case relates to levy. The instant case pertains to exemption and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational and modern tax policy the case of Food Corporation of India will support the case of the revenue than the petitioner. 13.In Writ Petition No 18437 of 2018 the notice issued by the Directorate of Revenue Intelligence is challenged. The enquiry appears to be initiated on 15.03.2018. Subsequently on 05.04.2018 , as averred in the affidavits, an amount of ₹ 7,05,14,929/- is paid by the petitioner equivalent to IGST benefit on 3302 MT of copper. For the enquiry to go to the logical end, the participation of the petitioner in the enquiry is imperative. The petitioner is directed to cooperate with the enquiry and DRI is directed to complete the enquiry at the earliest possible time. While conducting the investigations, it shall be borne in mind by the respondents that GST is a nascent legislation and a lot of notices are issued to different exporters on the very same issue. As admitted by both sides, the exemption is deferred under the scheme and not unavailable to count as loss of revenue, notwithstanding the interest on delay. These Writ Petitions are dismissed with the above directions to the petitioner and Respondent No.3. No costs. Consequently, connected misce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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