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TMI Blog2001 (5) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... t compass of the dispute is that the petitioners with the help of the financiers, purchased the aforesaid goods from the respondent No. 6, a manufacturing company of India. According to them, the price includes excise duties. Therefore, the respondent No. 6 is liable to pay excise duties, if any, to the Central Excise Authorities. The goods were registered under the appropriate motor vehicles, authority in India. The Oil and Natural Gas Commission Limited (hereinafter called as 'ONGC Ltd.') a Government company made an agreement with the petitioners in India to deploy such goods for the completion of a project of M/s. Bangladesh Gas Fields Co. Ltd. (a company of Petro-Bangla) in Bangladesh, which will be brought back to India after completion of the contractual work. Necessary permission was sought from the Reserve Bank of India which was duly granted by them. Such type of movement of goods from India to a country and coming back is called 'export-cum-reimport' as per technical nomenclature of the customs authorities. Such words in the nature of export-cum-reimportation will be available in every necessary documents for movement i.e. permission of Reserve Bank of India, proforma in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties without payment of customs duty equivalent to the Central Excise duty due to release of bonds in favour of the manufacturer/respondent No. 6 without waiting for re-importation. 6.Seeing no other alternative, the petitioners invoked the writ jurisdiction of this Court. At the intitial stage a Division Bench was pleased to observe that customs duty may be paid which will be abide by the result of the writ petition. No compulsion was there but the petitioners paid the total amount of Rs. 75,00,000/- as an interim measure to prove the bona fide to before the Court and to bring back the goods at the earliest to fulfil the other commercial commitments elsewhere. Accordingly, the goods were allowed to reimport to India upon deposit of such amount. 7.At the time of final hearing, in effect, there are two contesting respondents. One is the Central Excise authorities being respondent numbers 1, 4 and 7 on whose behalf an affidavit was filed by the pen of the concerned Assistant Commissioner, Central Excise surprisingly leaving aside the Commissioner of Central Excise, respondent No. 2 herein being the appropriate authority of accepting and/or releasing the bonds as per paragraphs 2(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Customs or as the case may be post-supervision; (d) such bonds shall not be discharged unless the goods are duly exported, to the satisfaction of the Commissioner of Central Excise (or Maritime Commissioner of Central Excise) within the time allowed for such export or are otherwise accounted for to the satisfaction of such officer, or until the full duty due upon any deficiency of goods, not accounted so, has been paid." 11.The above quoted portion of the notification under the Rule clearly speaks that the excise authority cannot mechanically behave in carrying out release order of bonds. Therefore, when the documents about export clearly says that the movement is to be counted as export-cum-reimportation and customs authority under the appropriate form certified that the bonds will exist till reimportation as to why a hurried decision to release the bond was taken place by the Central Excise Authority without waiting till reimportation is best known to him. 12.'Export' and 'Import' are the words provided in the Customs Act for the customs authorities. Customs Act also made provision for reimportation of goods under Section 20 of the Act and further made provision for grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the condition of customs duty, if any, by the merchant-exporter i.e. petitioner No. 1 herein. In other words, it can safely be said that furnishing of bonds to the Central Excise duty by the respondent No. 6/manufacturer cannot be regarded as guarantee on the part of third party i.e. merchant-exporter but on the part of the manufacturer itself till the goods being exported. It has made for the simple reason that a manufacturer cannot send any manufactured goods outside the country without payment of excise duty. This is the reason for which customs authorities did not want to file any affidavit and also with a wishful thought that it may lead to controversy between two authorities under same ministry before the court of law. 14.Against this background the only issue before this Court is whether the customs authorities can impose customs duties upon the petitioners or not. General Exemption Nos. 95 and 95A on account of import tariff in respect of imports by privileged persons, organizations, authorities and foreigners are required to be discussed in this respect. General Exemption No. 95 speaks about the exemption to reimport of goods sent for execution of approved projects. In e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of export. (b) under claim for drawback of any excise duty levied by a State. Amount of excise duty leviable by State at the time and place of importation of the goods. (c) under claim for rebate of Central Excise duty. Amount of rebate of Central Excise duty availed at the time of export. (d) under bond without payment of Central Excise duty. Amount of Central Excise duty not paid. (e) under Duty Exemption Scheme (DEEC) or Export Promotion Capital Goods Scheme (EPCG). Amount of excise duty leviable at the time and place of importation of goods and subject to the following conditions applicable for such goods. (I) DEEC book has not been finally closed and export in question is delogged from DEEC book. (II) In case of EPCG scheme the period of full export performance has not expired and necessary endorsements regarding reimport have been made. (III) The importer had intimated the details of the consignment re-imported to the (Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise in charge of factory where the goods were manufactured and to the licensing authority regarding the fact of reimportation and produces a dated acknowledgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Table there has been no change in ownership of the goods between the time of export of such goods and re-import thereof : Provided further nothing contained in this notification shall apply to re-imported goods which had been exported - (a) by a hundred per cent export-oriented undertaking or a unit in a Free Trade Zone and defined under Section 3 of the Central Excise Act, 1944 (1 of 1944); (b) from a public warehouse or a private warehouse appointed or licensed, as the case may be, under Section 57 or Section 58 of the Customs Act, 1962 (52 of 1962). Explanation. - For the purposes of this modification, the goods shall not be deemed to be the same if these are reimported after being subjected to re-manufacturing or reprocessing through melting, recycling or recasting abroad. 16.Can it be said by whom it will be furnished ? Definitely not by the merchant-exporter but by the manufacturer on whose account it is payable. 17.In the instant case merchant-exporter is the one when manufacturer is the other. The manufacturer cannot get the benefits of exemption which are supposed to be given to the merchant-exporter. Similarly, the manufacturer cannot put an embargo in getti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise was in a position to obtain authority of the Secretary, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs why not from the Commissioner of Central Excise too. The Court is very much curious in observing the conduct of the deponent. 20.It is to be remembered in this connection that so far as the foreign exchange is concerned the Reserve Bank's permission is the prime consideration. Customs and Central Excise are only the regulating authorities. It is depending upon the policy of the policy makers how the foreign exchange of the country will be regulated through the Reserve Bank of India. It is desirable that the executive should follow the policy but not allow to frustrate the same which has exactly happened herein. In case of doubt about ownership it would have been appropriate to wait till reimportation was being caused as wanted by the certifying officer of the customs authority under AR 4 form. Such question was avoided by the respondent No. 6/manufacturer by saying the Certifying Officer of Customs had no authority to issue such certificate. I am surprised even such factual submission was not confronted by any affidavit on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emembered policy of globalisation is knocking at the door. The commercial footsteps are heart beat of the true globalisation. If the commercial activities are interfered in the manner how the commercial people will keep trust upon the governmental machineries. It is needless to mention that Court has a noble cause to give suggestion and it is entirely for the Government to accept and implement. In such case Court can only expect good senses. So far the first point is concerned I want to restore the position back by applying the principles of status quo anti because of the reason the appropriate Central Excise authority and the respondent No. 6/manufacturer proceeded with clandestine manner at the cost of the writ petitioner/ merchant-exporter who's claim of exemption of customs duty is totally unconnected with the same admittedly. 24.So far the second point is concerned balance of convenience is totally supporting the petitioner/merchant-exporter and for the same, it is entitled to of the positive relief. Such positive relief is regularisation of reimportation free from condition. 25.So far as the third point is concerned it is a legal necessity to issue clarificatory notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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