9911796707
TMI Blog2002 (9) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ame effective. According to them, out of three machines one had come before for which the 10% duty had been paid. But remaining two machines have come after the introduction of the new scheme. However when all the machines were treated to be released by the authority such date will be the cut of date for the purpose of availability of the scheme. At the material point of time 0% duty scheme was prevailing. Therefore, the petitioners are not only entitled to get a declaration from the court that they are not supposed to pay any duty but whatever they have paid, will be refunded. 5.Further, according to the petitioners, by a letter dated 29th June, 1999 the authority informed that the case of the petitioners had been considered and approved by EPCG committee at the meeting held on 14th June, 1999. Necessary instruction in this regard will have to be issued to the Joint DGFT, Calcutta. But, surprisingly, duty of 10% ad valorem introduced on 5th August, 1999. Subsequently, an explanation was given by the authority on 8th September, 1999 saying that in a meeting of the EPCG committee on 23rd August, 1999 it has been decided that the request of the petitioners cannot be entertained bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charged by the nationalised bank. 9.The respondents have taken the plea that the subject-matter in issue is hit by principles of fait accompli. The learned Counsel appearing on behalf of the respondent has brought to notice of the Court to the relevant parts of the petition which are as follows : Your petitioners, for the"3. afore-mentioned project, imported three machines from Thies GmBH Co., Lindauer Doriner GmBH Calator Ruckh AB. Your petitioners by virtue of the said import became entitled to avail of the Export Promotion Capital Goods (EPCG) Scheme which provided for a duty of customs at the rate of l0% ad valorem. Accordingly your petitioners applied to authorities concerned for grant of licence to import capital goods on 14th January, 1999 under the 10% duty, Scheme. Your petitioners crave leave to refer to the said application dated 14th January, 1999 along with its enclosures at the hearing, if necessary. The4. said application of your petitioners was approved by EPCG committee and communication in this respect was made to your petitioners by letter dated 18-2-1999. Your petitioners crave leave to refer to a copy of the said letter dated 18-2-99 at the hearing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect. Fourthly there was a stand of applicability or non-applicability of the notification to the textile sector. Lastly verbal stand that as because EPCG committee approved the application of the petitioners and communicated by 18th February, 1999, the case of the petitioners become fait accompli. Therefore what is the standpoint of the authorities? Will it be unreasonable to believe that the act of the authorities is neither bona fide nor outcome of fair deal? It is to be remembered in a fiscal dispute one element of wrong can create huge amount of loss or gain. According to me prospectivity or retrospectivity of the applicability of the fiscal statute on account of imposition of duty on valid importation is based on declaration of the importer by way of submitting bill of entry. Such question arose before this court in another application being W.P. 2573 of 2001 (Anvil Investment Pvt. Ltd. Anr. v. Union of India Ors.) when this court observed this aspect of the matter in an unreported Judgment dated 24th May, 2002. The relevant part of such judgment is as follows : "Learned Counsel appearing on behalf of the Union of India contended that the Bill of Entry is the appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transitional period cannot be construed as valid period of legal importation on the bill of entry so that the goods can be released for home consumption on bonds. Goods arrived in the country cannot be necessarily mean that such arrival is made as per the bill of entry. Bill of entry is the declaration of the importer about lawful entry of the goods. On the basis of such declaration duty can be imposed. Imposition of duty cannot be compared with confiscation of goods or illegal or irregular entry which may not be declared as valid entry in future". 12.That apart non-applicability of the 0% duty benefit to the textile sector as per the explanation of the respondents appears to be wrong appreciation of facts. Therefore it is far to say that any question of prospective application arose therein. It appears to me that as per General Exemption No. 76J under the Notification No. 28/97-Cus., dated 1st April, 1997 amended up to 11th May, 1999 speaks that whole of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 and from so much of the additional duty leviable thereon under Section 3 of the Act, as in the excess of the amount ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
