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TMI Blog2016 (12) TMI 1913X X X X Extracts X X X X X X X X Extracts X X X X ..... ng directions. First respondent/Development Commissioner shall transfer all the files to the jurisdictional Customs Officer to enable the jurisdictional Customs Officer to take up the cases for adjudication as a regular case based on merits and in accordance with law. The files pertaining to the show cause notice shall also be transferred to the jurisdictional Customs Officer. The jurisdictional Customs Officer shall afford the petitioner an opportunity to submit their objections and thereafter take up the show cause notices for adjudication. The jurisdictional Customs Officer, while adjudicating the show cause notices, shall adjudicate as to whether the Development Commissioner has jurisdiction to issue the show cause notices or to adjudicate the matter in issue. Apart from the same, the other issues which have been raised in the show cause notices shall also be adjudicated. For this purpose, the Development Commissioner shall be heard by the jurisdictional Customs Officer. It is made clear that in the preceding paragraph, the legal position as canvassed by the petitioner and as counted by the respondent/Development Commissioner has been set out and it is for the adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtronics Special Economic Zone to the Domestic Tariff Area Unit of the petitioner, under Section 30 of the Special Economic Zones Act, 2005 read with Notification 125/2010-Cus, dated 16.12.2010 and Section 9A of the Customs Tariff Act, 1975. 3. The reason for approaching this Court by way of these writ petitions was because the respondents, in particular, the first respondent, the Development Commissioner, was attempting to levy ADD on the clearances made by the petitioner of PCBAs from the Flextronics Special Economic Zone (SEZ) unit to the Domestic Tariff Area Unit of the petitioner. 4. This Court heard the matter elaborately on various dates and it would be worthwhile to refer to certain interim directions issued, so that there will be a cogency of facts and the ultimate directions which this Court proposes to issue in these writ petitions. Therefore, the interim orders dated 02.09.2016 and 5.10.2016 are extracted below in seriatim. Interim order deated 2.09.2016 Heard Mr.P.S.Raman, learned Sernior Counsel and Mr.Sathish Parasaran, learned Senior Counsel assisted by Mr.Karthik Sundaram, learned counsel appearing for the Petitioner and Mr.G.Rajagopalan, learned Additional Solicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s PPCB'S to the petitioner which is situated in the Special Economic Zone under the control of the first respondent and what is being imported by M/s.Flextronics Technologies India Pvt. Ltd. are stand alone components which are used for the manufacture of PPCBAs. Therefore, it is submitted that this is not as if the PPCBAs or synchronous and transmission enquipment is being imported and sold to the petitioner and the even as per the clarification issued by the DGAD all components or parts imported on standalone basis would not attract Anti-Dumping Duty. 7.Futher it is pointed out that the appropriate authority to conduct Anti-Dumping Circumvention Investigation in India is the DGAD and they have not received any application for investigating circumvention of duties. 8. After hearing the arguments of the learned Counsel appearing for the parties, this court is of the prima facie of the view that the Development Commissioner could not Act as an appropriate Officer or Adjudicating Authority under the provisions of the Customs Act or the Central Excise Act or the Finance Act as there is no such power conferred under Special Economic Zone Act on such officer. However, the impact of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, dated 28.11.2016. 6. After the above referred two affidavits have been filed and after hearing the learned Senior counsels for the petitioner, this Court passed the interim order dated 24.11.2016, which is to the following effect. Heard Mr.P.S.Raman, learned Senior counsel and Mr.Sathish Parasaran, learned Senior Counsel assisted by Mr.Karthik Sundaram, learned counsel appearing for the petitioner. 2.Pursuant to the order passed by this Court, dated 05.10.2016, an affidavit has been filed by the Assistant Commissioner gof Customs, Specified Officer (SEZ) in the office of the first respondent on behalf of the respondents. On a perusal of the affidavit, it is seen that the respondents are agreeable for the case files to be transferred to the jurisdictional Customs Commissioner to be decided on merits and certain other issues have been raised in the affidavit, to which an affidavit in reply has been filed by the petitioner. The learned Senior Counsel has referred to the salient features in both the affidavits and seeks for appropriate direction by transferring the files to the jurisdictional Customs Commissioner. 3.The learned counsel appearing for the respondents submits that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing prayer. 8. In view of the submissions above it is respectfully prayed that this Hon'ble Court may be pleased to i. Order transfer of all the case files to the jurisdictional Customs Commissioner hif the Hon'ble Court decides so; subject to the condition that the adjudication shall be on all aspects of the allegations in the notice on merit and not limited to any specific issue or limitations. Further, in case of transfer, the Hon'ble Court may specifically direct that the notice issued shall not be hit by any time bar provision. ii. the acceptance of the respondents shall not be construed as admittance by the respondents of lack of jurisdiction of the Development Commissioner and the Hon'ble Court may clearly specify in the order that the issue of jurisdiction of the Development Commissioner in such cases has not been decided. iii. may direct the petitioner to continue to pay the ADD as decided by the Hon'ble Court earlier in W.P.No.27873 gof 2014 till he adjudication is completed. iv. may also direct that the averment of the petitioner regarding components and parts and applicability of circumvention of ADD etc.shall also be decided during the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Court in M/s.Flextronics Technologies (India) Private Ltd., is not about the leviability of ADD on the goods cleared from a SEZ, but it is about Whether the Antidumping Duty paid by the DTA importer for the goods imported from SEZ formed part of the sale price of the goods manufactured and sold for the purpose of payment of VAT . 12. Apart from the above contentions, several other contentions have been raised in reply to the stand taken by the petitioner in their affidavit. 13. In the light of the stand taken in the affidavit filed by the Development Commissioner, agreeing for transfer of the files to the jurisdictional Customs Officer, this Court does not propose to examine the factual or legal contentions put forth on either side and they have been set out in the preceding paragraph with a view to keep the jurisdictional Customs Officer informed about the contentions raised by the petitioner though not elaborately, but to give a broad over view of the respective contentions. Thus, in the light of the above developments and taking note of the affidavits referred to above, the writ petitions are disposed of by issuing the following directions. 14. The first respondent/D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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