9911796707
TMI Blog2009 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... HTA, JJ. Mr. Amit Sibal with Mr. Siddharth Silwan and Mr. Vinay Tripathi, Advocates, for the appellant. Mr. A.S. Chandhiok, Additional Solicitor General Mr. Amit Bansal, Mr. Ritesh Kumar, Mr. Sandeep Bajaj and Ms. Manisha Singh, Advocates, for the respondent. [Judgment per A.K. SIKRI, J.]. - The brief factual matrix transpires as under : 2. The petitioner had entered into a franchisee agreement on 20.4.2004 with the Bharat Sanchar Nigam Ltd. (hereinafter referred to as BSNL). As per this agreement, the petitioner was to provide broadband connection to landline subscribers of BSNL in Ghaziabad, Noida, Faridabad and Gurgaon. For this purpose, the petitioner was to supply broadband and triple play equipment. It decided to procure the same through its supplier ZTE Corporation, China (hereinafter referred to as the 'supplier'). In order to fulfil this obligation with BSNL, the petitioner entered into two sales contracts with the supplier to supply ADSL port and related broadband equipment for a total capacity for 10,000 subscribers. These agreements were entered into on 2.12.2004 and on that basis the petitioner imported the aforesaid equipment which reached India betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the petitioner, the Department of Revenue Intelligence (DRI), the respondent No.2 herein, seized and sealed the containers containing the goods. They also seized all the original documents such as bill of entries, duty payment receipts, shipping bills, RBI GR waiver from the Customs Clearing Agents of the petitioner, namely, M/s. R.B. Ramnathlambah Sons Pvt. Ltd. Though all this was done without panchnama or preparing the list of itinerary, it was followed by summons dated 19.4.2007 issued under Section 108 of the Act to the petitioners Director Mr. Ravinder Singh Chauhan asking him to appear before the DRI on 23.4.2007 pertaining to the said import. The petitioner states that in the meanwhile since almost 19 months had elapsed from the date of filing of the shipping bills, the use and requirement for the goods also ended in Slovakia. The supplier in China, however, agreed to take back the goods and, thus, on 28.4.2007 the petitioner and the supplier informed DRI about this with a request to release the original documents to the petitioner for filing the said amendment in the shipping bills so that goods could be shipped to China. However, the DRI refused to release the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo years in respect of two shipping bills bearing No. 146/8.11.2006 and 149/8.11.2006 as under :- SB No. Date Let Export Date BE No./Date Duty paid as per BE 98% of the duty paid claimed as DBK 146/8.11.06 9.1.07 848296/31.12.04 21,27,380 20,84,832 149/8.11.06 16.1.07 843008/23.12.04 28.07.757 27,51,602 Total 49,35,137 48,36,434 The exporter failed to produce any permission of Board for extension of two years limit specified under Section 74 of the Act. (b) GR waiver certificate obtained earlier was also not valid on the date of 'let export order' and had expired long back. (c) Present Market Value of the goods is less than drawback being claimed in the light of technological obsolescence. (d) As per their letter dated 28.4.2007, the petitioner is now to Present Market Value of the goods is less than drawback, i.e. M/s. Atlas Opportunities Ltd. as that order is cancelled now. In such a case, it appears that they would be required to file fresh shipping bills, which would render all the shipping bills hit by the limit of two yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order No. 2/2001 dated 7.3.2001. The circumstances for re-export under Section 74 of the Act are analogous to the aforesaid circumstances. The respondents have also referred to the Board's instructions issued vide Letter F. No. 450/82/95/CUS-IV dated 7.7.1997 and Circular No. 42/01-CUS dated 31.7.2001 wherein it is specifically provided that where it is not practicable to seize the goods, the goods may be detained for investigation and pending such investigation the goods could be provisionally released for re-export on furnishing a Bond. 9. Mr. Amit Sibal, learned counsel appearing for the petitioner, made strenuous plea that the detention of goods and taking away the documents amounted to seizure, inasmuch as, in the absence of those documents it was not possible for the petitioner to re-export the goods. According to him, when in sum and substance the goods were seized, the procedure for seizure of such goods was required to be followed, but admittedly no seizure orders were passed and, therefore, the seizure was illegal. He also submitted that on 14.2.2007, the goods were seized and even till the expiry of six months, i.e. 14.8.2007, no show-cause notice was issued, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not required, instead of sending the goods back the supplier at China, the petitioner chose to re-export the same to some other party in Slovakia. When the DRI started investigation about the said party and wanted the petitioner to establish the credentials thereof, as the respondents had the apprehension that the said company was not in existence, the petitioner, for fear of exposure, took a somersault and changed the request for re-export to the supplier in China rather than sending it to Slovakia. The learned ASJ referred to the statement of Mr. Chauhan, Director of the petitioner, recorded under Section 108 of the Act, which finds mention in the show-cause notice issued under Section 124 as well. As per the statement, though it is mentioned that M/s. Atlas Opportunities Ltd. at Slovakia is a sister concern, there was no communication in writing received by the petitioner with regard to scrapping of the project of M/s. Atlas Opportunities Ltd. 12. It was further submitted that the petitioner was not serious about the release of documents, which were taken by the respondents for further investigation, inasmuch as, the request for release of documents was made for the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Slovakian company and to see as to whether there is such a company or not, the petitioner all of a sudden came out with the plea that the equipments were not required by the Slovakian party and now it wanted to re-export the same to the supplier in China. The entire transaction is shrouded with mystery, to say the least. 15. That apart, we also find that no serious efforts were made by the petitioner to seek release of documents for re-export either. The request for such purpose was made much belatedly, which gives an impression that the petitioner was only buying time. This impression further gets strengthened from the fact that no serious efforts were made by the petitioner to re-export the goods even when the respondents allowed the same, subject to furnishing of Bond. Though, during the arguments, an attempt was made to contend that it was not open to the respondent to put a condition of furnishing a Bond, the circumstances lead us to believe that the petitioner was not serious about this condition as well. When re-export was allowed on provisional basis, the present writ petition had already been filed and was pending in this Court. The petitioner never moved any a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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