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TMI Blog2011 (8) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner for non-fulfillment of export obligation on the ground that the benefit of DEPB has also beer' claimed against the same exports. 3. In terms of the order which is impugned in the above Writ Petition, the third respondent issued a show cause notice dated 10.8.2007. Petitioner requested the authorities to keep the said show cause notice ill abeyance pending disposal of the above petition on merits. However, over-ruling the said request, the third respondent hag passed an order on 21.2.2008 confirming the duty of ₹ 80,62,950/- along with applicable interest and penalty. Aggrieved by the said order, the petitioner preferred an appeal along with a stay application. However, the second respondent is demanding payment of the aforesaid duty in pursuance of the order dated 21.2.2008. Therefore, W.P.No.9551 /2008 is filed challenging the correctness of the order dated 29.5.2008 and for other consequential reliefs. That is why both the Writ Petitions as they are inter linked are taken up together for consideration. 4. The petitioner is a Public Limited Company incorporated under the Companies Act. 1956. inter alia engaged in the manufacture of export oi foundry pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance Licence for import of duty free fuel (Furnace Oil) on Actual User Condition, as permitted under the General Note for Fuel Policy, subject to the terms and conditions set out in Chapter 4 of the Foreign Trade Policy. The petitioner have not availed any Advance Licence facility for import of any other raw material listed in the SION for manufacturing the HCGMB. 7. The petitioner applied for and was granted four Advance Licenses, details whereof are given in a statement. It is significant to note that under all the said four Advance Licenses, the petitioner had applied for, and were therefore. permitted to import, duty free only Furnace Oil which is one of the inputs permissible under the said norms. The petitioner did not opt for duty free import of other input/raw material, although permissible under the said norms. In the manufacture of the said goods, the petitioner also uses various other inputs/ raw materials. The manufacturing process of the said goods in brief is described. Apart from Furnace Oil, the petitioner procured (inputs/raw materials) from the local domestic manufacturers. These other inputs/raw materials were duty paid, i.e. to say, duty to excise was paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order dated 11th January 2007 with regard to the demand for customs duty, interest and penalty, and the same is pending before the Additional Director General of Foreign Trade, New Delhi. me petitioner have also since deposited ₹ 35 lakhs in compliance with the orders of this Court. 12. The Export Obligation period in respect of the second License bearing No. is 710039056 dated 11th July 2005. Accordingly, by letter dated 10th July. 2007, the petitioner informed the respondents that they had exported the goods to the tune of ₹ 43.2.5 Crores as against the obligations to export goods worth ₹ 40 Crores and enclosed photo copies of the shipping bills and bank realisation certificate. 13. While the appeal before the Additional Director General is pending, the second respondent issued a Demand Notice dated 25th July, 2007 in respect of the second License bearing No. 710039056 dated 11th July. 2005 on the ground that although the export obligation period expired on 11th July 2007 no export documents to show fulfillment of the export obligation had been submitted in terms of paragraph 4.25 of the Handbook of Procedures (hereinafter referred to as the Handbo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible under the provisions of the FTP and the Handbook. Hence, they have filed W.P.No. 16716/2007. 17. The 3rd respondent had simultaneously issued a Show Cause Notice dated 10/08/2007 to the petitioner calling upon the petitioner to show cause as to why benefit availed on import of furnace oil without payment of duty under DEEC scheme should not be denied to the petitioner and demand of customs duty of ₹ 80,62,950/- along with interest in respect of Advance Licence dated 11/07/2005 and impose penalty under Section 117 of the said Act. The Show Cause Notice was issued to the petitioner on the premise that since the petitioner had not fulfilled export obligations or till date submitted proof of export obligation discharge certificate issued by Joint Director General of Foreign Trade evidencing the fulfillment of export obligation. it appears that the petitioner had contravened conditions laid down in the Advance license. 18. The 3rd respondent had passed an order on 21 /02/2008 confirming the amount of duty of ₹ 80,62.950/ along with applicable interest and imposed a penalty of ₹ 5 lakhs ender Section 112 of the said Act. 3rd respondent had not taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder single SION or as per General Fuel Policy of products for which SION exist or as per General Fuel Policy under para 4.7 or under adhoc norms. (c) Fuel should be allowed only against actual user licence and therefore fuel shall not be allowed for import against DFRC which is transferable in nature. (d) Even where fuel is included as an input under SION, it shall not be taken into account while fixing DEPB rate for such products against which fuel has been allowed as an input. 23. On 26th May 2005. by public notice No.12 (RV 2005)/2004-09 further amendments were made to Foreign Trade Policy 2004-09 where at item 163 in the schedule of DEPB rate 3% of FOB value is the duty credit on High Chromium Grinding Media Balls up to maximum ₹ 35/- per kg. 24. In the PAL Instructions for filing application forms at page 3, the names of schemes and combination of schemes are provided. Therefore, the combination of DECC scheme and DEPB scheme is not provided. Therefore, it was contended that it is impermissible to combine DECC and DEPB scheme for getting the benefit which the petitioners are claiming in these writ petitions. 25. The learned counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g captive power plant. (b) Fuel should be allowed either under specificasion or as per the general fuel policy for products for which SION exists or as per general fuel policy under paragraph 4.7 or under ad-hoc norms. (c) Fuel should be allowed only against an actual user licence and therefore, fuel shall not be allowed for imports against DFRC, which is transferable in nature. (d) Even where fuel is included as an input under SION, it shall not be taken into account while fixing the DEPB rate for such products against which fuel been allowed as an input. (e) The applications of fixation of fuel entitlement for new sectors and modification of the existing entitlement as per the General Note for Fuel in the Handbook of Procedures (Vol.2) would be made to the Advance Licensing Committee along with the requisite data in Appendix 10 H pertaining to the Data Sheet for Fuel Rate . The Advance Licence holders wishing to procure the fuel indigenously may apply for an Advance Release Order or Back to Back Inland Letter of Credit. The indigenous supplier supplying fuel shall be entitled for deemed export benefits given in para 8.3(a). (b) (c) of the Policy. In case the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral provisions regarding exports and imports provides as under : - Submission of certified copies of documents:- Wherever the original documents have been submitted to a different Regional Authority/nominated agencies or to a different division of the same Regional Authority the applicant can furnish photocopy oy the documents duly certified by him in lieu of the original 29. Therefore, if the original documents are produced while claiming the benefit under one scheme. if he is entitled to benefit under another scheme, it is not possible for him to produce the original to avail the said benefit. Therefore, the law provides for production of photo copy of the documents duly certified by the assessee in lieu of the original. Therefore, the objection that originals are not produced and therefore he is not entitled to benefit under the DEPB scheme is contrary to law and cannot be sustained. In fact the Appellate Authority recognizes the right of the petitioner to avail the benefit under Duty Draw Back Scheme as he has not availed the benefit of importing raw materials under the Advance Licence Scheme. Therefore, it categorically states that appellant firm was free to take r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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