2008 (8) TMI 116 - HC - Customs

Court upholds DEPB restoration, sets aside penalty; petitioner can challenge penalty separately. Revisional jurisdiction valid but penalty unjustified.

ALFA INTERNATIONAL Versus UNION OF INDIA

The court upheld the restoration of Duty Entitlement Pass Books (DEPBs) but set aside the penalty imposition due to a pending appeal against a previous ... Director General of Foreign Trade setting aside the order passed by the Additional Director General whereby it was ordered to recover the DEPB benefit along with interest; suspension of licence; and imposing penalty - in terms of S. 16 of FTDR, the order against which an appeal has been preferred cannot be interfered in revisional jurisdiction – held that penalty could not be imposed by the Revisional Authority as the appeal against the order imposing penalty is pending before Add. Director Issues:Challenge to order setting aside DEPB benefit, suspension of license, and penalty imposition.Analysis:1. The petitioner exported goods under the Duty Entitlement Pass Book Scheme, which allows importing goods without paying custom duty to neutralize the customs duty incidence on the export product.2. The Scheme was part of the Export and Import Policy for a specific period, allowing exporters to claim credit based on the FOB value of exports.3. The petitioner applied for DEPB based on export documents but faced allegations of wrongly availing DEPB for different goods, leading to cancellation and recovery orders.4. An appeal restored the DEPBs at a lower rate, and a subsequent notice was issued under the Foreign Trade Act to show cause against the restoration order.5. The petitioner argued against the revisional jurisdiction exercised, claiming it was unjustified and illegal, especially regarding the penalty imposition while an appeal against a previous penalty order was pending.6. Provisions of the Foreign Trade Act were cited, highlighting the power to suspend or cancel licenses for good reasons, subject to a hearing opportunity.7. The Act also addresses contraventions, confiscation, and penalties for violations of export and import policies.8. The judgment analyzed whether the revisional jurisdiction was correctly applied concerning the restoration of DEPBs and the penalty imposition.9. It was concluded that while the revisional jurisdiction was valid for restoring DEPBs, the penalty imposition was set aside due to the pending appeal against a previous penalty order.10. The petitioner was granted liberty to pursue remedies against the penalty imposition order separately, and the writ petition was disposed of with modifications to the original order.