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TMI Blog2019 (11) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... isting of ports in Notification No.104/2009 is not an exhaustive list and on the other hand, it is only inclusive in view of the fact that the authorities included other ports by amending the said Notification periodically. Even otherwise, as the Commissioner is empowered to grant such permission in respect of other ports as well, the submissions made by the Revenue in this aspect are not convincing. The respondent is directed to extend the benefit of Notification No.104/2009 dated 14.09.2009 to the petitioner in respect of the above said five Bills of Entry - Petition allowed. - W.P.No.18720 of 2019 And W.M.P.No.18078 of 2019 - - - Dated:- 7-11-2019 - Mr. Justice K. Ravichandrabaabu For the Petitioner : Mr.R.Parthasarathy for Mr.V.Muthuraman For the Respondents : Mr.A.P.Srinivas Senior Standing Counsel ORDER The petitioner is aggrieved against the order of the second respondent dated 10.04.2019, wherein and whereby, the request of the petitioner to extend the benefit of Notification No.104/2009 - Customs dated 14.09.2009, in respect of goods already cleared vide five Bills of entry through ICD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Slitting Line 1,88,75,089 3. 2472035/19.06.2013 Slitting Line 1,64,81,013 4. 2530076/25.06.2013 Slitting Line 2,11,01,230 5. 2807178/25.07.2013 Drawing Bench 150 Tonne 1,73,73,831 Total 8,93,76,038 (b) The exemption claimed by the petitioner was allowed by the Customs after duly debiting the status holder incentive scheme scrips submitted by the petitioner. However, subsequently, the third respondent through communication dated 06.12.2013, called upon the petitioner to pay the duty of ₹ 8,93,76,038/- in cash on the ground that the ICD - Arakkonam was not a notified port for the purpose of importation of goods under the said Notification No.104/2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onam was not included for clearance of goods under SHIS Scheme in the Notification No.104/2009 at the relevant point of time as it was not in existence. Once the ICD - Arakkonam started its operations from 14.10.2010, the Board had amended the original Notification by issuing a Notification No.5/2015 Cus dated 20.02.2015 including ICD Arakkonam as a Port for import of goods under SHIS Scheme. Till the Notification was amended to include ICD Arakkonam as a port for SHIS Scheme, based on specific request, Commissioner of Customs is empowered to permit clearance of import consignments under SHIS scheme by passing special order. However, no special permission was obtained by the petitioner from the Commissioner. 4. Mr.R.Parthasarathy, learned counsel appearing for the petitioner after reiterating the contentions raised in the affidavit filed in support of the writ petition further submitted as follows :- Though the ICD - Arakkonam was not originally included in the Notification No.104/2009, admittedly, it was included by way of substitution by issuing Notification No.5/2015 Customs dated 20.02.2015. Further, the Commissioner is also empowered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturer exporters as export promotion measure and the capital goods imported against such scrips are exempted from payment of custom duties. Therefore, the petitioner by taking advantage of Notification No.104/2009 submitted the SHIS scrips for the value of total duty involved of ₹ 8,93,76,038/- towards the above five Bills of Entry and cleared the goods. There is no dispute to the fact that at the time of clearing the goods, the customs did not make any objection by contending that ICD - Arakkonam was not a notified port. However, subsequently, the petitioner was called upon to pay the above said duty in cash, only on the reason that ICD - Arakkonam was not a notified port for the purpose of importation of goods taking benefit under the Notification No.104/2009. 8. It is seen that the second respondent earlier passed an order of rejection on 20.12.2013, refusing to extend the benefit of the said Notification in respect of the above said five Bills of Eentry. The petitioner challenged the said order before this Court in W.P.Nos.17177 17178 of 2014. This Court disposed the said writ petitions on 25.10.2018 by observing at paragraph Nos. 8, 9, 10, 11 as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner favorably based on the representation submitted by them. In other words, this Court instead of issuing a positive Mandamus, directed the second respondent to issue such appropriate order favorably. 11. However, the second respondent has chosen to pass the present impugned order and rejected the benefit only by stating that port ICD - Arakkonam was not included in the exemption Notification at the relevant point of time. It is not in dispute that the ICD - Arakkonam is subsequently included in the exemption Notification, by issuing Notification No.5 of 2015 dated 20.02.2015. It is also not in dispute that the petitioner is permitted to import goods through ICD - Arakkonam thereafter, by availing the exemption Notification No.104/2009. The denial is only in respect of the past five imports, referred to supra. 12. In my considered view, the exemption Notification No.104/2009 though referred to certain ports originally, when admittedly it was amended periodically by including other ports as well and one such inclusion is ICD - Arakkonam, it cannot be said that the ports referred to in the exemption Notification originally are exhaustive in na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n exemption was granted from payment of additional duty leviable under Section 3 of the Customs Tariff Act to those who had been issued a Duty Entitlement Pass Book by the Licensing Authority. Sub-clause (iv) of Clause (2) of the said notification states : (iv) The said Duty Entitlement Pass Book shall be valid for twelve months from the date of issue, for import and export only, at the port of registration which shall be one of the sea ports at Mumbai, Calcutta, Cochin, Kandla, Mangalore, Marmgoa, Chennai Nhava Sheva, Paradeep, Tuticorin and Visakhapatnam, or any of the airports at Ahmedabad, Bangalore, Mumbai, Calcutta, Coimbatore, Delhi, Jaipur, Varanasi, Srinagar, Trivendrum, Hyderabad and Chennai or any of the Inalnd Container Depots at Bangalore, Coimbatore, Delhi, Gauhati, Kanpur, Pimpri (Pune), Pitampur (Indore), Moradabad, Ludhiana and Hyderabad. 22. Had the intention of the Government of India been only to extend the said benefit only to the exporters from any other seaport, airport or inland container depot, recourse to the proviso appended to sub-clause (iv) of clause (2) of the notification dated 7.4.1997 could have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem also. For such purposes the statute need not be given retrospective effect by express words but the intent and object of the legislature in relation thereto can be culled out from the background facts. 15. Since the above objection regarding the retrospective operation of the Commissioner's power is answered by the Apex Court in the above said decision, I am of the view that the contention of the Revenue in this aspect, is also liable to be rejected. Even otherwise, as I already observed supra, when this Court has specifically directed the second respondent to consider the case of the petitioner favorably, unless and until the said observation is set aside or modified, the second respondent is not justified in passing an adverse order once again, stating the very same reason, as stated in the previous order which was put to challenge in this Court in W.P.Nos.17177 17178 of 2014. Therefore, on that ground as well, I am inclined to hold that the order of the second respondent cannot be sustained. 16. Accordingly, this writ petition is allowed and the impugned order is set aside. Consequently, the respondent is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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