Calcutta High Court
Dinmay Exim Avenue(P)Ltd vs Union Of India & Ors on 20 October, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
WP No. 1436 of 2008
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
DINMAY EXIM AVENUE(P)LTD Petitioner
Versus
UNION OF INDIA & ORS Respondents
BEFORE:
The Hon'ble JUSTICE JAYANTA KUMAR BISWAS Date : 20th October, 2009.
The Court :- The petitioner in this writ petition dated August 27, 2008 is aggrieved by the decision of the Assistant Commissioner of Customs, Drawback Department, Customs House, Kolkata dated July 21, 2008, Annexure P2 at p.35.
The petitioner is a merchant exporter. It exported goods and for the purpose took credit facilities provided by the Punjab & Sind Bank, 14/15, Old Court House Street, Kolkata-700001. In connection with the exports it became entitled to duty drawback. Customs paid it Rs.53,04,272/- by several cheques all dated May 21, 2008. The payment was made in terms of an order of the Customs, Excise & Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata dated November 5, 2007. When two more shipping bills were in process customs received a letter dated June 2, 2008 from one P.J. Khoshy who described himself as an advocate and independent investigator. In view of the letter, customs stopped payment in terms of the shipping bills. Under the circumstances, the writ petition was filed. Customs and the Bank have filed their respective oppositions. Case of the customs is that payment was stopped because of the letter dated June 2, 2008 issued by P.J.Khoshy. The bank's case is that since the petitioner became entitled to duty drawback in connection with the exports 2 which were made the credit facility provided by it, the customs could not pay the petitioner any amount and that the cheques were top be issued in the name of the bank account the export.
The letter of P.J.Khoshy dated June 2, 2008 reads as follows :-
"Please stop Drawback payment of DINMAY EXIM AVENUE PVT. LTD. They are a cheater company and cheated public money of Rs. 4 crore from Punjab & Sind Bank, International Banking Division, 14-15 Old Court House Street, Kolkata-700001 and closed their account. Now opened new account with Central Bank of India to cheat the Government. Actual cost of all vests exported by Dinmay Exim Avenue Pvt. Ltd. are less than Rs.22/- per pc. And exported to their own company in Myanmar (M/s. Ayoma Internatinal) which is now sold to other person.
This is my duty to inform you the real background of the company and their proprietor (Mr. Dinesh Chandra Rawat)".
Counsel for the customs has clearly conceded that P.J. Khoshy has not issued the letter dated June 3, 2008 under any statutory provision, and hence customs were not under any statutory obligation to stop payment of balance to the petitioner. Counsel for the Bank has said that P.J.Khoshy has not issued the letter under any provision of any statute, in view of the Reserve Bank of India guidelines which he can produce only if he gets more time. Other banks could not permit the petitioner to open account and encash cheque issued by customs for paying duty drawback until the petitioner paid its dues for recovery of which it has already filed an original application before the debt recovery tribunal.
I am unable to agree with the counsel for the bank that customs could not issue cheque in the name of the petitioner that admittedly became entitled to duty drawback. It is not known under what authority P.J.Khoshy claiming to be an advocate as also claimed to an independent investigator. His letter dated June 2, 2008 is of no consequence. It was not issued under any provision of any statute. Hence customs were not under any statutory obligation to stop payment. The bank has already instituted proceedings before the tribunal for recovery of its dues allegedly not paid by the petitioner. That took credit facility provided by it for the exports in connection wherewith the drawback benefits became available. In the absence of any legal right entitling the bank to seek payment from customs, I am unable to see how it can claim that customs should 3 issue cheque in its favour. In my o0pinion, on the basis of the letter dated June 2, 2008 written by P.J.Khoshy customs could not withheld payment of balance duty drawback to the petitioner. I agree with counsel for the petitioner that the petitioner is entitled to payment of the balance with interest according to law.
For these reasons. I allow the writ petition and order as follows. Within a fortnight from the date of communication of this order customs, especially the Assistant Commissioner of Customs who wrote the letter dated July 21, 2008, Annexure P2 at p.35 shall pay the petitioner the balance duty drawback with interest payable according to law. There shall be no order for costs.
All parties to act on a signed xerox of this order on the usual undertakings.
Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the department concerned.
(JAYANTA KUMAR BISWAS, J.) sksr.