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TMI Blog2019 (1) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the concerned amount. The requirement of a waiver, in the alternative, would arise only if the principal requirement of the GR declaration is at all attracted. In this case, it is undisputed that the exporter i.e. owner and the person entitled to the engine were one and the same i.e. the petitioner. Having regard to these circumstances, the necessity for blind adherence to a declaration and further necessity for waiver, in the opinion of the Court was entirely uncalled for. There is sufficient indication in the Regulations i.e. the manner of definition of export and even the phraseology of Regulations regarding non-commercial exports that in cases like the present one, if compelling circumstances lead the original owner to bring in goods to remedy an unforeseen eventuality, such as the need to fly back an aircraft, it is not to be subjected to such requirements. The absurdity is writ large on the face of the record. The Court is of the opinion that there is no question of respondents/Customs Authorities insisting that the GR requirement was mandatory or that, in its absence, exemption from RBI was necessary - petition allowed. - W.P.(C) 6344/2018 - - - Dated:- 10-1-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of the engine, were kept open. This order was later clarified. The petitioner was permitted to re-export the aircraft by paying the entire amount of ₹17.09 crores, based upon the determination of liability of basic duty and penalty by the Customs Authorities, without prejudice to its rights. 4. The petitioner was aggrieved by the Commissioner s decision and appealed to the Tribunal [CESTAT], which by its order dated 23.06.2017, accepted its plea and allowed the appeal. The petitioner was held liable for payment of duty since the engine had been imported. At the same time, the CESTAT held that the penalty was unwarranted as was the confiscation. These two amounts were set aside. The petitioner had to approach this Court yet again by filing W.P.(C) 6544/2018, claiming refund of the penalty amount, which had been deposited by it during the pendency of the appeal, since those amounts were not released by the Customs Authorities. This Court by its Division Bench order dated 24.09.2018 directed the release of those amounts after considering the entirety of the circumstances. 5. In the present case, the petitioner s claim is with respect to duty drawback. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the imported goods as the duty in this case was paid on 12.08.2014 and the Let export Order was accorded on 14.08.2014. Even if the date of importation is considered as 29-11-2012, the Exporter have re-exported the goods within two (2) years, as stipulated under Section 74 of Customs Act 1962. 7. Mr. Harpreet Singh, on behalf of the Commissioner of Customs submits that the requirement of submission of Guaranteed Remittance Declaration, is a pre-condition, imposed by the Reserve Bank of India through its circular issued through Foreign Exchange Management (Export of Goods and Services) Regulations, 2000. It was submitted that by virtue of Regulation 3(1), every exporter has to furnish a declaration in one of the forms in the schedule. It is submitted that the requirement of such declaration can be exempted per Regulation 4. Learned counsel stresses that Regulation 4, in its original form, did not envision the kind of situation which the present case discloses. It is stated that by further amendment of the Regulations dated 27.02.2001, other conditions i.e. Regulation 4 (k), (l) and (m) were introduced. It was submitted that in terms of Regulation 4(m), exemption could have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 51; or (ii) are to be exported as baggage and the owner of such baggage, for the purpose of clearing it, makes a declaration of its contents to the proper officer under section 77 (which declaration shall be deemed to be an entry for export for the purposes of this section) and such officer makes an order permitting clearance of the goods for exportation; or (iii) are entered for export by post under section 82 and the proper officer makes an order permitting clearance of the goods for exportation, ninety-eight per cent. of such duty shall, except as otherwise hereinafter provided, be re-paid as drawback, if-] (a) the goods are identified to the satisfaction of the 2[Assistant Commissioner of Customs or Deputy Commissioner of Customs] as the goods which were imported; and (b) the goods are entered for export within two years from the date of payment of duty on the importation thereof: Provided that in any particular case the aforesaid period of two years may, on sufficient cause being shown, be extended by the Board by such further period as it may deem fit. (2) Notwithstanding anything contained in sub-section (1), the rate of drawback in the case of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipal requirement of the GR declaration is at all attracted. In this case, it is undisputed that the exporter i.e. owner and the person entitled to the engine were one and the same i.e. the petitioner. Having regard to these circumstances, the necessity for blind adherence to a declaration and further necessity for waiver, in the opinion of the Court was entirely uncalled for. There is sufficient indication in the Regulations i.e. the manner of definition of export and even the phraseology of Regulations regarding non-commercial exports that in cases like the present one, if compelling circumstances lead the original owner to bring in goods to remedy an unforeseen eventuality, such as the need to fly back an aircraft, it is not to be subjected to such requirements. The absurdity is writ large on the face of the record. 14. Having regard to these facts, the Court is of the opinion that there is no question of respondents/Customs Authorities insisting that the GR requirement was mandatory or that, in its absence, exemption from RBI was necessary. For the above reasons, the writ petition deserves to and accordingly succeeds. A direction is given to the respondents to process ..... X X X X Extracts X X X X X X X X Extracts X X X X
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