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TMI Blog2005 (3) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ction restraining the respondent Nos. 2 and 3 from harassing the petitioner and prohibiting investigation against the petitioner; (vi) issue any other appropriate writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; and (vii) award cost of this writ petition to the petitioner." 2.Briefly stated, the facts giving rise to the present petition are as follows :- The petitioner is a registered firm. It is a 100% Export Oriented Unit. According to the petitioner, it has been awarded for excellent performance for export by the Ministry of Commerce, Government of India. It had been granted letter of permission dated 15-12-2000 to set up a 100% Export Oriented Unit in terms of the EXIM Policy 1997-2002 framed by the Ministry of Commerce under the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as "the Foreign Trade Act"). According to the petitioner, under Section 5 of the Foreign Trade Act, the Central Government has framed EXIM policy from time to time. Under the said policy, the Central Government provides various facilities to the exporters subject to certain conditions. Para 9.5 of Chapter IX o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f permission issued to the petitioner. As a follow up measure, the Superintendent (Preventive), Central Excise, Meerut-II wrote a letter on 6-4-2004 informing the Assistant Commissioner that the Commissioner, Customs and Central Excise, Meerut-II had granted approval for immediate suspension of issuance of facility of C.T.-III/Procurement Certificate to the petitioner in terms CVC guidelines in Paragraph No. 3 of letter dated 17-10-2002 and accordingly to ensure that the facility of C.T.-III/Procurement Certificate be suspended. The petitioner on coming to know about the move to suspend C.T.-III facility, moved a representation on 8-4-2004 for continuance of the facility. A show cause notice was issued by the Development Commissioner, NOIDA Export Processing Zone, on 19-3-2004 calling upon the petitioner to show cause as to why the letter of permission granted to the petitioner be not cancelled to which the petitioner submitted a detailed reply. While the matter was pending before the Development Commissioner, the Assistant Commissioner, Central Excise Division, Hapur, passed an order on 19/20-4-2004 cancelling the permission to the petitioner to sub-contract the production on job ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed and the Tribunal has held that the Commissioner had no authority under the law to suspend the C.T.-III facility granted to the petitioner. It appears that in the meanwhile the petitioner had filed another writ petition before this Court being Civil Misc. Writ Petition No. 1759(T) of 2004, which was, however, withdrawn on 17-12-2004 in view of the order passed by the Tribunal on 16-12-2004. Inspite of the order of the Tribunal dated 16-12-2004 as the facility had not been restored, the petitioner made a request on 29-12-2004 to the Superintendent, Central Excise and Customs, Amroha for issuance of pre-authenticated book of C.T.-III, which the Superintendent declined. Similar request was made to the Assistant Commissioner, Central Excise and Customs, Hapur. However, the Additional Commissioner (Preventive), vide letter dated 5-1-2005 informed the petitioner that the Central Board of Excise and Customs has decided that the C.T.-III/Procurement facility can be permitted subject to the execution of bond for the value of the goods and 100% bank guarantee for the duty involved for the goods and similar such security for future procurement. A bank guarantee of Rs. 3.10 crores plus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port obligation which is not only bringing a bad name to the petitioner but the nation is being deprived of precious foreign exchange. He, thus, submitted that the respondents be directed to restore the facility of C.T.-III as was being enjoyed by the petitioner earlier. 7.Sri D.K. Soni, learned Standing Counsel, however, submitted that there is definite information with the Department that the petitioner has been diverting the raw materials which it had imported without payment of duty to its sister concern for oblique purpose and, therefore, it is not entitled for the continuance of C.T.-III facility without safeguarding the interest of the Revenue which can amply be safeguarded if the petitioner furnishes the requisite bank guarantee and other security for the amount of duty and future imports. He, further, submitted that under Section 37-B of the Central Excise Act and Section 151A of the Customs Act, the Central Board of Excise and Custom is empowered to issue directions and, therefore, the order dated 5-1-2005 cannot be said to suffer from any legal infirmity and is well within jurisdiction. 8.Having heard the learned Counsel for the parties, we find that under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Custom Act and the Central Excise Act for penalising the 100% Export Oriented Unit which misuses the concession or facility provided to them. Various instructions and the circulars issued by the Central Board of Excise and Customs cannot take place of law. The order of the Tribunal setting aside the order passed by the Commissioner of Central Excise, dated 27-7-2004, is reproduced below :- "We have considered the submissions of both the sides. In the impugned order as well in the submissions before us by the learned S.D.R., no provision of law has been cited which empowers the Commissioner of Central Excise to suspend the facility of procuring raw material duty free by a 100% EOU. Both the Customs Act and the Central Excise Act contain the provisions for penalising the 100% EOU which misuses the concession or facility provided to them under various investigations. The circular issued by the CBEC cannot take place of the law. The power to suspend the facility to obtain raw material free of duty is a penal action which can be initiated only under the authority of law. In absence of such authority of law being cited before us, we are of the view that the facility of procurin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties. A decision simply because it may be wrong, would not thereupon become a nullity. It would continue to bind the parties unless set aside. All the effect of the decision on the parties, therefore, cannot be ignored. 15.A Division Bench of this Court in the case of M/s P.N.C. Construction Company Ltd. v. State of U.P. and Others, 2002 UPTC 262, has held that it is a well-settled legal position that the Revenue officers are bound by the decision of the Appellate Authority. The Trade Tax Tribunal being the Appellate Authority, its order is binding upon the Assessing Authority and the Revenue who function under the jurisdiction of the Tribunal. 16.As already mentioned hereinbefore, we find that the Tribunal by its order dated 16-12-2004 had set aside the order passed by the Commissioner, Customs and Central Excise, Meerut-II, dated 27-7-2004 wherein the Commissioner had suspended the facility of the duty free procurement of raw materials. The Tribunal has further held that the Board has no jurisdiction to suspend the facility to obtain raw material free of duty. It has further held that the facility of procuring the raw material duty free cannot be suspended till such time t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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