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TMI Blog2019 (4) TMI 1541X X X X Extracts X X X X X X X X Extracts X X X X ..... r places the necessary documents to establish the same. The matter is remanded to the BoA to consider the petitioner s appeal afresh. - W.P.(C) 11728/2016 & CM No. 46168/2016 - - - Dated:- 22-4-2019 - MR VIBHU BAKHRU J. Advocates who appeared in this case: For the Petitioner: Mr. Rupesh Kumar, Advocate. For the Respondents: Mr. Gaurnag Kanth, CGSC with Ms. Biji Rajesh and Ms. Eshita Baruah, Advocates. JUDGMENT VIBHU BAKHRU, J 1. The petitioner has filed the present petition impugning the minutes of a meeting dated 06.01.2016 (hereafter the impugned minutes ) passed by respondent no.3 (the Unit Approval Committee, NOIDA Special Economic Zone). By way of the impugned minutes, the Letter of Approval (LoA) issued to the petitioner was cancelled. The said impugned minutes were further affirmed by respondent no.2 (Board of Approval, Department of Commerce hereafter BoA ) in its meeting dated 09.11.2016 and the appeal preferred by the petitioner was rejected. 2. The petitioner disputes that it has persistently violated the provisions of the Special Economic Zones Act, 2005 or the Rules made thereunder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of the LoA was extended for a period of five years. It was again extended in the year 2012 for a further period of five years that is, up to 31.03.2017 subject to the following conditions: 1. You shall achieve Positive Net Foreign Exchange (NFE) as prescribed in the SEZ Rules, 2006 for the period you operate as a unit in the NSEZ failing which you shall be liable for penal action under the FT(D R) Act, 1992. 2. You shall abide by the provisions of Special Economic Zones Act, 2005and rules and orders/instructions made there under. 3. You shall execute revised Bond cum Legal Undertaking in the form H of SEZ Rules, 2006 within 15 days from the date of the issue of this permission. 4. All other terms and conditions of LOA dated 31/07/91 (or as amended from time to time) will remain unchanged. 5. You will ensure that the details of this permission/letter are incorporated / updated in your unit details/database on SEZONLINESYSTEM within SEVEN days from the date of issue of this letter. 6. You shall submit acceptance of terms conditions of this permission to the Development Commissioner, NSEZ immediately. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d violations made by the petitioner and further stating that an amount of ₹50 Lakhs has been deposited by the petitioner as customs duty and not towards any penalty/fine/liability emerging out of the investigation. 13. Thereafter, the UAC in its meeting dated 10.02.2016, inter alia, observed that the petitioner has violated the provisions of SEZ Act/SEZ Rules and terms conditions of LOA/Bond-cum-LU. The relevant extract of the minutes of the meeting of the Approval Committee of Noida SEZ is set out as under: 10. The Committee on the basis of the above facts and with respect to written submissions of the unit contained in their letter dated 04/02/2016 and admission by Shri P V Khullar came to the following conclusion: i) The unit has been persistently violating the provisions of SEZ Act/SEZ Rules and terms conditions of LOA/Bond-cum-LUT. ii) The- unit has admitted the mis-declaration of goods covered under the Bills of Entry - a) BE No. NSEZ0008568 dated 05/10/2015, b] BE No. NSEZ0008527dated 03/10/2015 as explained in Para 3 and 8 above. iii) The unit has deposited an amount of ₹ 50. Lakhs (Rs. 35 Lakh vide challan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. One of the principal grounds urged in the petition to assail the decision of the Board of Approval (BoA) is that the BoA also included the Development Commissioner of NOIDA SEZ as a Member. In this context, it is averred in the petition that the impugned decision of the BoA was vitiated on account of bias. However, at the stage of final arguments, learned counsel for the petitioner did not press this issue and, therefore, it is not necessary to consider the same. 19. The Unit Approval Committee (UAC) had taken note of the a letter dated 23.10.2015 sent by the Asstt. Commissioner (SIIB) to Specified Officer(Customs) NOIDA SEZ, inter alia, mentioning certain instances of import against three Bills of Entry (BoE NSEZ008568 dated 05.10.2015; BoE NSEZ0008457 dated 30.09.2015; and BoE NSEZ0008527 dated 03.10.2015), which were concluded as cases of mis-declaration by the petitioner. It was also pointed out that the petitioner had deposited ₹50,00,000/- as duty/penalty/fine against the BoAs dated 30.09.2015 and 03.10.2015. It was also noted that search and seizure operations were conducted by SIIB and goods imported against BoE no. 8667 dated 07.10.2015 were found to be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that since the units has failed to provide the said documents i.e., details of EEFC Account of DTA Buyer or Free Foreign Exchange received from overseas, NFE position cannot be determined. Further, details of payment received from EFFC Account or from overseas buyer should be through normal banking channel and that can be provided by the unit. Thus, the contention of the unit that it is unable to provide the details of EFFC account etc. as the same has been seized by DRI, is untenable. Further, the following observations of the UAC were noted:- (i) The unit has bene persistently violating the provisions of SEZ Act/SEZ Rules and terms conditions of LoA/Bon-cum-LUT. (ii) The unit has admitted the mis-declaration of goods covered under the Bills of Entry-a) BE No.NSEZ0008568 dated 05.10.2015, b) BE No.NSEZ0008527 dated 03.10.2015 as explained in Para 3 and 8 above. (iii) The unit has deposited an amount of ₹ 59 Lakhs (Rs.35 lakh vide challan NO.730468 dated 20.10.2015 and ₹ 15 lakhs vide Challan No.730467 dated 20.10.2015 towards their duty/penalty/fine liability emerging as the outcome of Investigation against the said thr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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