Kerala High Court
M/S. Arjuna Natural Extracts Ltd vs Commissioner Of Customs
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
FRIDAY,THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939
WP(C).No. 3573 of 2017 (V)
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PETITIONER:
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M/S. ARJUNA NATURAL EXTRACTS LTD.
P.B.NO.126, BANK ROAD, ALWAYE-683 101,
REPRESENTED BY ITS MANAGING DIRECTOR P.J.KUNJACHAN.
BY ADVS.SRI.P.A.AUGUSTIAN
SRI.M.A.BABY
SMT.LINDA.M.J.
RESPONDENT(S):
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1. COMMISSIONER OF CUSTOMS
CUSTOMS HOUSE, W/ISLAND, COCHIN-9.
2. ASSISTANT COMMISSIONER OF CUSTOMS
OFFICE OF THE COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE, COCHIN-09.
3. JOINT DIRECTOR GENERAL OF FOREIGN TRADE
5TH FLOOR, A-BLOCK, KENDRIYA BHAWAN,
KAKKANAD, COCHIN-682 037.
R1 & R2 BY ADV. SRI.P.R.SREEJITH, SC,
BY SREELAL N. WARRIER, SC,
P.R. PRASANTH SC
R3 BY ADV. SRI.GIRISH KUMAR.V., CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-07-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sdr/-
WP(C).No. 3573 of 2017 (V)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE ADVANCE LICENSE NO.1010044859
DATED 11.08.11.
EXHIBIT P2 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.35/2016 DATED 11.03.16.
EXHIBIT P3 TRUE COPY OF THE REDEMPTION LETTER DATED 20.09.16.
EXHIBIT P4 TRUE COPY OF THE CHALLAN DATED 29.8.16.
EXHIBIT P5 TRUE COPY OF THE ORDER-IN-APPEAL NO.143/2016 DATED 26.10.16.
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
PA TO JUDGE
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A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C) No.3573 of 2017
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Dated this the 14th day of July, 2017
JUDGMENT
The petitioner had imported a consignment of 'Boswellia gum" against an advance license dated 11.08.2011, issued by the 3rd respondent. As per the said advance license, the petitioner was to discharge an export obligation worth Rs.25,48,000/- before 10.08.2014, for the purposes of getting the benefit of concessional rate of customs duty in respect of the imports effected under cover of the advance license. It would appear that the petitioner occasioned a delay in submitting documents before the 3rd respondent, for the purposes of getting the necessary Export Obligation Discharge Certificate, which would have established that the petitioner had conformed with the condition with regard to export obligation. Taking note of the non-production of an Export Obligation Discharge Certificate by the petitioner, the 2nd respondent proceeded to finalise the assessment under the Customs Act, by denying the petitioner the benefit of concessional rate of duty in respect of the imports effected under cover of the advance license, and demanded the duty that was foregone in respect of the goods at the time of their import. Ext.P2 is the order of the 2nd respondent confirming a duty demand of Rs.6,87,366/- along with applicable interest, on the petitioner. It is the case of W.P.(c).No.3573 of 2017 : 2 : the petitioner in the writ petition that the 2nd respondent proceeded to act with undue haste in confirming the differential duty demand on the petitioner, more so, when the petitioner was pursuing the matter with the 3rd respondent for the purposes of getting the Export Obligation Discharge Certificate. It is seen that the petitioner preferred an appeal against Ext.P2 order before the appellate authority under the Customs Act, but the said authority, by Ext.P5 order, dismissed the appeal, as being time barred. In the writ petition, the petitioner impugns Ext.P2 and P5 orders of the original and appellate authority under the Customs Act, to the extent they confirm the differential duty demand on the petitioner.
2. Through counter affidavits filed on behalf of the 1st and 2nd respondents, Exts.P2 and P5 orders passed by the authorities under the Customs Act, are sought to be justified for the reasons contained therein. In particular it is pointed out that, inasmuch as the exemption notification under the Customs Act had to be strictly construed, the petitioner could not get the benefit of concessional rate of duty, when he had not complied with the requisite procedural conditions that were insisted upon in the notification granting the concessional rate of duty. In a statement filed on behalf of the 3rd respondent, it is stated that, although initially the norms committee W.P.(c).No.3573 of 2017 : 3 : under the Director General Authority, New Delhi, did not consider the case of the petitioner favourably for granting the Export Obligation Discharge Certificate, in a subsequent meeting, when it was found that the petitioner had submitted the necessary documents for establishing fulfilment of export obligation, the case of the petitioner was considered, and after collecting the differential duty in respect of the additional imports that had been effected for the excess export obligation discharged by the petitioner, the respondents condoned the delay in filing of export documents and other documentary proofs by the petitioner, and issued an Export Obligation Discharge Certificate on 20.09.2016, thereby redeeming the export obligation that was insisted in the advance license granted to the petitioner.
3. I have heard the learned counsel for the petitioner, Sri. P.R.Sreejith, the learned Standing Counsel for respondents 1 and 2 and Sri. Girish Kumar, the learned Central Government Counsel for the 3rd respondent.
4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from a perusal of Ext.P2 and P5 orders that the confirmation of the demand of differential duty on the petitioner is essentially for the reason that the W.P.(c).No.3573 of 2017 : 4 : petitioner did not produce the documents to establish that he had discharged the export obligation that was required of him, in terms of the advance license issued to him. The differential duty demand basically represents duty foregone at the time of imports against the advance license. Since it is the admitted case now, pursuant to the statement filed on behalf of the 3rd respondent, that the petitioner has complied with the export obligation that was required of him, and further, the 3rd respondent has also issued the necessary Export Obligation Discharge Certificate to the petitioner, I am of the view that the very basis for the differential demand confirmed against the petitioner in Exts.P2 and P5 orders has been removed. I, therefore, quash Exts.P2 and P5 orders, and declare that in view of the Export Obligation Discharge Certificate issued to the petitioner by the 3rd respondent, the petitioner shall be deemed to have discharged his export obligation in terms of the advance license granted to him.
The writ petition is closed as above.
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A.K.JAYASANKARAN NAMBIAR JUDGE sm/