9911796707
TMI Blog2008 (4) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ble oils with annual installed capacity of 23,040 Metric Tonnes. The import and Export is governed and controlled by Foreign Trade (Development Regulation) Act, 1992. The Central Government in terms of provisions of Section 3 of the Act has power to make provisions relating to import and export. The Government has power to prohibit, restrict or regulate the import or export of any goods. The Government under Section 5 of the Act has also power to issue policy to achieve the objectives of the said Act. Sections 3 and 5 of the Act are reproduced as under:- "Section 3. Power to make provisions relating to imports and exports :- (1) The Central Government may, by Order published in the official Gazette, make provision for the development and regulation and foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods. (3) All goods to which any Order under sub section (2) app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made under sub-section (2). Provided that no drawback shall be allowed under this sub-section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than the value of the imported materials used in the manufacture or processing of such goods or carrying out any operation on such goods or class of goods, or is not more than such percentage of the value of the imported materials used in the manufacture or processing of such goods or carrying out any operation on such goods or class of goods as the Central Government may, by notification in the Official Gazette, specify in this behalf : Provided further that where any drawback has been allowed on any goods under this sub section and the sale proceeds in respect of such goods are not received by or on behalf of the exporter in India within the time allowed under the Foreign Exchange Management Act, 1999 (42 of 1999), such drawback shall be deemed never to have been allowed and the Central Government may, by rules made under sub-section (2), specify the procedure for the recovery or adjustment of the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (2) shall include the power to give drawback with retrospective effect from a date not earlier than the date of changes in the rates of duty on inputs used in the export goods." 4. The rate of duty and value of goods is determined for the purpose of levy of Customs duty in terms of Section 15 of the Customs Act, 1962, which is reproduced as under :- Section 15. Date for determination of rate of duty and tariff valuation of imported goods. - (1) The rate of duty and tariff valuation, if any applicableto any imported goods, shall be the rate and valuation inforce,- "(a) In the case of goods entered for home consumption under Section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) In the case of goods cleared from a warehouse under Section 68, on the date on which a bill of entry for home consumption in respect of such goods is presented under that section; (c) In the case of any other goods, on the date of payment of duty : Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft by which the goods are imported, the bill of entry sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially exempted from custom duty. Thus, according to the petitioner, the action of the respondents by issuing these notifications amounts to infringing the fundamental rights of the petitioner of carrying business and trade as enshrined under Article 19(1)(g) of the Constitution of India, as the export of refined oil has been banned and the raw material has been exempted from duty. However, respondent No. 2 is not ready to permit the clearance of crude oil without payment of duty and since as per the notification dated 17.3.2008, the petitioner cannot export refined oil, therefore, he is bound to suffer irreparable heavy loss and cannot survive. Thus, the petitioner has prayed either to allow him to clear crude olive oil without payment of duty or export refined oil under drawback scheme. 7. We have heard Shri Jagmohan Bansal, Advocate, learned counsel for the petitioner, and find no force in the contentions raised by him. From the perusal of the averments made in the writ petition, it is crystal clear that under the provisions of the Act, the Government is competent to issue the notifications dated 17.3.2008 and 1.4.2008. It is further clear that these notifications have been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h assessment order has been placed on record of the case. The petitioner has also averred in the writ petition that he wanted to import crude oil against advance authorization scheme of Foreign Trade Policy relating to export of refined oil under duty drawback scheme. However, no such application filed by the petitioner for advance authorization has been placed on record of the case. Thus, in view of this non-availability of material facts on record of the writ petition, it cannot be made out that the petitioner shall suffer any irreparable loss or injury, which amounts to infringement of his fundamental right of carrying on free trade and business under Article 19(1)(g) of the Constitution of India. It is also relevant to mention that under Section 15 of the Customs Act, 1962, the relevant date for determination of rate of duty and tariff valuation of imported goods is the date of bill of entry and in case if a bill has been presented before the date of entry inwards of the vessels or the arrival of the aircraft by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival as the case may be. In this case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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