TaxTMI 
TaxTMI 
2010 (2) TMI 491
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....ing, processing, importing, exporting and dealing in ready-made garments, made-ups, hosiery, knitted goods, yarn, textiles, jute, wool, fibre, plastics, leather goods and handicrafts of all kinds. 3. The petitioner-company applied for a duty free advance license under DEEC scheme with Mumbai Joint CCI. Thereafter the petitioner was also issued a Value Based License (under the provisions of Notification No. 203 of 1992) against the said application bearing licence No. 309151. It is averred that subsequently the petitioner registered the said licence with the Mumbai Customs and according to the provisions of the Customs Act, 1962 executed the bond with necessary declarations with the Customs authorities at Mumbai. 4. It is averred that the petitioner imported goods utilizing the advance licence through various bills of entries at Kandla Port and also cleared the consignments. Thereafter, the petitioner-company commenced export towards completion and discharge of the export obligation as required by the advance licence and has produced details with regard to the same. It is therefore contended that the aforesaid licence No. 309151 was a "value based advance licence" and not a "q....
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....ated that the petitioner cannot be held responsible for failure on part of respondent No. 1 to serve the show cause notice before passing the order-in-original. It is also contended that the respondent No. 1 issued the notice beyond the period of limitation of six months as provided in Sec. 28 of the Customs Act, 1962 and therefore the action was barred by limitation under Sec. 28(1)(b) of the Customs Act. It is also contended that the petitioner had fulfilled the export obligations and there is gross violation of rules of natural justice and the impugned order-in-original as well as the order passed by the CESTAT as well as the notice issued pursuant thereto are illegal and bad in law. It is also contended that the adjudicating authority ought not to have passed an order confiscating the imported goods under Sec. 111(d) and 111(o) of the Customs Act and also ought not to have imposed penalty under Sec. 112 of the Customs Act. It is also contended that the order-in-original and the findings are not correct and the finding that the petitioner has not cooperated during adjudication proceedings is baseless as no such opportunity was given to the petitioner and therefore the entire pro....
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...., therefore, submitted that under the Right to Information Act, 2005. Shri Babulal Lath, Director of the petitioner-company, made an application before the Joint Director General Foreign Trade requesting for details which have been narrated in the statement of facts produced at p. 157 and he was informed vide letter dated 2-11-2006 by the office of Joint Director General Foreign Trade that they are not able to provide the information and the documents as it pertains to 1993 and unwanted files up to 1996 have been destroyed. Copy of the said letter is at Annexure F, p. 140. Therefore, learned Sr. Counsel Mr. Kavina submitted that though hearing is said to have taken place in 1997, the notice was served in February, 2006 for which now the impugned notices are issued and therefore they are required to be quashed and set aside. 11. Mr. Kavina, learned Sr. Counsel, referring to the impugned order passed by the Tribunal, submitted that the petitioner, therefore, prepared an appeal and the impugned order came to be passed by the Tribunal imposing a condition for deposing Rs. 50 lakhs within a period of eight weeks. Learned Sr. Counsel Mr. Kavina submitted that the said order dated 31-1....
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....nd the whereabouts of the party were unknown and therefore the order-in-original came to be passed dated 12-8-1999 and the petitioner-company or the director has not moved any application or anything though it was an obligation for the petitioner-company or its director to inform the authorities when the unit is closed and/or to make necessary declaration as required under the laws like the Customs Act or the Central Excise Act. It has not been done admittedly. The report has been made by the Asst. Commissioner of Central Excise as stated above and after a lapse of time the director who has sworn in the affidavit. Mr. Babulal Lath, makes an application to the Joint Director General Foreign Trade asking him to provide details with regard to the files under the Right to Information Act for which he addresses a letter dated 5-10-2006 at Annexure E, wherein he has mentioned his address as Director of M/s. Sunbeam Garments (P) Ltd. and his personal address as 304/A, Standard House, 83 M.K. Road, Mumbai. 15. Therefore, after having made an application to which reply was given vide communication dated 22-11-2006 (Annexure F) that the files are not available and they are destroyed which....
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.... on the applicant depositing Rs. 50 lakhs (Rupees Fifty lakhs only) within eight weeks from today with the revenue authorities, there shall be condonation of delay in filing of this appeal." 18. This order came to be passed on 17-1-2008 by the Tribunal and further Misc. Application for modification was filed, which is at Annexure 'M' wherein it is stated in para 2 that the applicant had handed over the papers to Shri Hardik Modh, the advocate appearing before the Tribunal, in the month of August, 2007. As learned advocate Mr. Modh had been out of station he had given instruction to one Mr. Rahul Gajera, advocate, to seek adjournment and as learned advocate Mr. Gajera had no instruction, the order was passed and he-was informed over the phone by the director Shri Babulal Lath that the company was not in a position to deposit Rs. 50 lakhs and at the most would try to give bank guarantee. That bank guarantee is also not given. It has been contended that the applicant had not instructed the learned advocate that the applicant would deposit the amount. Therefore, when the said appeal along with order passed came before the Tribunal, the Tribunal has reflected clearly that the delay w....
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....g the show cause notice was not served or the order-in-original was not served till June, 2006. As it is reflected hereinabove, the Asst. Commissioner of Central Excise made an inquiry and the unit was found closed and there is nothing to show that the petitioner-company or the director had made any declaration at the time of closure of the unit or had any communication about the change of the premises or the residence and when he wanted information he has addressed a letter which is replied and it is on the basis of this the respondents have served Shri Babulal Lath, the director of the petitioner-company, for which the grievance is made that subsequently it is served at his residential address and nothing has been served to the company at the address mentioned. 22. Though, strictly, the provisions of CPC may not apply, but the analogy would be applicable that when the person or the party claims that he should be served with the communication or the notice, it is also obligatory for them to make necessary declaration, once there is a change in the address or if the unit is closed. The petition is filed in the name of the Company by the Director and if the unit was closed or wha....