2018 (1) TMI 1184 - HC - Customs

Customs Commissioner's Decision Upheld on EPCG Scheme Goods Unloading Request

The High Court upheld the Commissioner of Customs, Bhubaneswar's decision to reject the petitioner's request to unload goods under the EPCG Scheme at ... Authorization under EPCG Scheme and FTP - import of three Grab Type Ship Unloaders (GRSU) from Shanghai Zhenhua Heavy Industries Co. Ltd., China - application for exercise of power under paragraph-10 of notification No.16/2015 of Central Board of Excise and Customs dated 01.04.2015 - Held that: - The present writ petition has been came to be filed on various grounds stated in the writ petition. The customs authorities came to file counter-affidavit sworn to by Sri Jayanta Baidyamajumder, Assistant Commissioner under the Commissioner, Customs (Preventive), Bhubaneswar dated 25.10.2017 and further additional counter affidavit dated 04.12.2017 has came to be filed on behalf of customs pursuant to our direction issued on 27.11.2017 appending thereto certain communication made by the Commissioner, Customs(Preventive), Bhubaneswar with the Central Board of Excise and Customs. Issues:1. Validity of the order dated 11.08.2017 of the Ld. Commissioner of Customs, Bhubaneswar.2. Permission to clear imported 3 GTSUs through Dhamra Port under the EPCG scheme.3. Extension of validity of unutilized EPCG Licenses due to inaction of Customs Authorities.Analysis:1. The petitioner, a port company, sought to import three Grab Type Ship Unloaders (GRSU) for its port in Odisha. The import was intended to facilitate the handling of lime stone and thermal coal through deep draught berths. Authorization under the Export Promotion Capital Goods (EPCG) Scheme and Foreign Trade Policy (FTP) was obtained, allowing duty-free import of capital goods. The EPCG Scheme mandates an export obligation equivalent to 6 times of duty saved on capital goods within six years. The petitioner applied for necessary permissions and authorizations for the import, and the goods arrived at Dhamra Port for unloading.2. The Commissioner of Customs, Bhubaneswar rejected the petitioner's request to unload the goods under the EPCG Scheme at Dhamra Port. The Commissioner noted that a Public Notice or Special Order declaring Dhamra Port as an eligible port for the EPCG Scheme should have been issued before the goods' arrival. The Commissioner emphasized that such declarations should be prospective, not retrospective, to avoid circumventing customs regulations. The Commissioner found fault with the issuance of a Registration Authorization (RA) for Dhamra Port by the Assistant Commissioner at Paradeep Customs, a non-specified port for EPCG purposes, without the required Special Order.3. The Commissioner highlighted the importance of timely communication and adherence to customs regulations. The Commissioner pointed out that the EPCG License can be issued with retrospective effect by the DGFT but not under the specific Customs Notification. The Commissioner referenced a previous importation by the petitioner in 2009, where proper communication and clearance procedures were followed, contrasting it with the current situation. The Commissioner concluded that the petitioner's actions did not align with the necessary procedures outlined in the EPCG Scheme and Customs Notifications.In conclusion, the High Court analyzed the grounds raised in the writ petition challenging the Commissioner's order. The Court considered the arguments presented by both parties, including counter-affidavits filed by the customs authorities. The Court reviewed the procedural aspects, the requirements under the EPCG Scheme, and the Customs Notifications to determine the validity of the Commissioner's decision. The judgment provided a detailed analysis of the legal framework governing import procedures and the obligations of the parties involved, ultimately upholding or modifying the Commissioner's order based on the legal merits presented during the proceedings.