TaxTMI 
TaxTMI 
2003 (9) TMI 415
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....rt quantity of 1888 MTs and 325.308 MTs under the two licenses, respectively. The applicant was required to export bare rotors and stators. The imports under the above licenses were made in terms of the provisions of Notification No. 204/92-Cus., dated 19-5-1992 as amended. 2. As a consequence of non-fulfilment of export obligation, the applicant was issued show cause notices dated 26-8-1997 and 9-4-1999 by the Joint Director General of Foreign Trade, New Delhi for the respective licenses. The respective notices required the applicant to furnish proof of exports and in default, proposed to take action for, inter alia, enforcement of legal agreement. 3. Based on the above Show Cause Notices, the Joint Director General of Foreign Trade, New Delhi issued Defaulter's Order and LUT Forfeiture Order on 8-8-2000. In these Orders, the JDGFT declared the applicant as a defaulter and directed it to pay Customs Duty along with interest at the rate of 24%. 4. The applicant made a representation dated 20-11-2001 to the DGFT with the request to issue appropriate directions to the concerned Customs authorities at Mumbai to accept the applicable Customs duty applicable on t....
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....The final hearing in this case was held on 24-7-2003 when the Applicant, M/s. Whirlpool of India Ltd., was mainly represented by Shri C.S. Lodha, Advocate. Shri Prakash Shah, Advocate, Shri Rajesh Kamdar, Consultant, Shri Jeetu Motwani Articled Clerk, and Shri Dinesh Mittal, Director (Legal) Whirlpool also remained present. 11. The ld. Advocate submitted that the applicant has not disputed the amount of duty demanded by the Revenue. It was further submitted that the applicant has complied with the Interim Order of the Commission and paid the admitted duty liability within the prescribed time. It was also submitted that the applicant cooperated with the Commission during the proceedings before the Settlement Commission since beginning and has made full and true disclosure of its duty liability. 12. The ld. Advocate further submitted that the applicant could not fulfil the export obligation primarily on account of the technology becoming obsolete and unacceptable in the international market because of ban on use of CFC in refrigeration industry. It was also submitted that the Notification No. 204/92-Cus., dated 19-5-1992 did not have any provision for charging interes....
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....nbsp; The applicant's claim for benefit of Cenvat credit on account of payment of CVD in this case is also not maintainable. (e) The Circular No. 53/2002, dated 20-8-2002 issued by the Department of Revenue, saying that Settlement Commission has no jurisdiction to entertain applications involving default in export obligation under advance licence/EPCG Scheme has also been quoted for issuing the Writ. (f) Pending the final disposal of writ petition, the Commission should be restrained from passing any order under Section 127A to 127N of the Customs Act, 1962. 19. The learned representative of DGFT, by furnishing a copy of writ petition filed before the Hon'ble High Court, Mumbai has contended that till the pendency of the said writ petition, the Commission should not pass any order in this matter. Having taken note of various issues raised in the writ petition and without prejudice to any direction/order that the Hon'ble High Court, may pass in the Writ Petition, we are of the view that the said Writ Petition is not pending. In support of this argument we would l....
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....FT. Paras 4, 5 and 7 of the judgment are as under :- "4. The representative of Revenue opposed the application in writing as well as orally during hearing on the ground that the Settlement Commission had no jurisdiction to entertain such an application in view of CBEC Circular No. 53, dated 28th August, 2002 as the applicant was aware of his duty obligation at the time of import of capital goods. The Revenue further submitted that the exporter was not disclosing any additional duty liability than what was known to him. 5. The Commission examined the submissions made by the applicant as well as Revenue and came to the conclusion that the submissions made by Revenue about lack of jurisdiction was not correct as the bill of entry was assessed at a concessional rate of 15% which was a much lower duty than that demanded in the Show Cause Notice which the applicant was now willing to pay. Further the Commission held that it was not correct to say that the assessee had to pay the entire duty liability even he fails to fulfil the export obligation partly. The amount of duty to be paid by the exporter depended on the extent of export obligation fulfilled by him. The Commissi....
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....eported in 1992 (61) E.L.T. 3 (S.C.) has held that dispute between Central Ministries are to be examined in the first instance by high level empowered Committee under Cabinet Secretary and no such dispute to come or to be proceeded with by any Court or Tribunal without clearance for litigation by such Committee. We do not find that DGFT which is part of the Department of Commerce in the Ministry of Commerce & Industry has taken due permission before filing the writ petition in the Hon'ble High Court of Mumbai challenging the jurisdiction of the Commission, merely reiterating therein the advice of the Ministry of Law. It is a well settled law that a circular issued by the Board is not binding on quasi judicial authorities as has been held by the Apex Court in case of M/s. Orient Paper Mills v. Union of India - 1978 (2) E.L.T. (J 385). 23. We would also like to clear that any order/decision passed by the Commission under Section 127C of the Customs Act, will be independent of the action proposed to be taken by the DGFT under Foreign Trade (Development & Regulations) Act, 1992 and the Exim Policy framed thereunder including the public notices issued thereunder. 24. The....