TaxTMI 
TaxTMI 
2012 (4) TMI 70
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....nt Fix Limited, Taiwan", whereas the petitioner was the importer. 2. The petitioner got in touch with the exporter Element Fix Limited, Ireland and came to know that due to the fault and negligence of the consolidator, the petitioner's consignment had been sent to Taiwan and the consignment that was meant for Element Fix Ltd., Taiwan had been sent to India instead. The petitioner accordingly wrote a letter to the Commissioner of Customs dated 30th June, 2005, stating that they were not at fault and that the matter had been enquired into by the supplier who had confirmed the mistake. The correspondence exchanged with the supplier was enclosed with this letter. For the purpose of clarity and to put the record straight, there is no allegation and it is not the contention of the respondents that the petitioner was involved or had any hand or was responsible for the wrong goods being shipped to India. The respondents have not challenged or questioned the intention, nor have they stated that the conduct of the petitioner lacked bonafides or was questionable. 3. By letter dated 30th June, 2005, the petitioner asked for permission from the authorities to re-export the c....
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.... a letter written by the Assistant Commissioner in his own handwriting to the petitioner. In the said letter it was not stated that this was an order rejecting the claim and it should be treated as an appealable order. Thus, the finding of the Commissioner (Appeals) that the appeal was barred by time is clearly wrong and contrary to law. 9. The application for extension of time filed by the petitioner with CBEC on 14th May, 2008, remained pending till 23rd October, 2008. By letter 23rd October, 2008, Technical Officer (DBK), CBEC wrote to the Chief Commissioner of Customs, Delhi Zone, stating that the application for condonation of delay filed by the petitioner should be decided by him in view of the powers conferred on the Chief Commissioner to condone delay of upto 12 months, beyond the prescribed period of 2 years. The Chief Commissioner of Customs was requested to consider the case expeditiously. The petitioner thereafter wrote letters dated 1st December, 2008 and 10th December, 2008, for consideration of their claim for extension of time for re-export beyond two years. On 15th December, 2008, the Chief Commissioner of Customs, Delhi Zone, passed an order rejecting th....
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....ds, according to him, were not imported into India and did not get mixed up with the mass of the goods in the country and therefore section 74 was not applicable. 11. Faced with the aforesaid position, the petitioner had no option but to file the present writ petition inter-alia with the following prayers: "(i) Quash the Department's letter dated 15.12.2008 being unlawful. (ii) To Sanction the drawback claim for Rs.1,49,207/- (iii) To Sanction the refund of Rs.10,000/- imposed as penalty contrary to law: (iv) To award interest to the Petitioner on the drawback amount of Rs.1,49,207/- from the date of claim till the date of payment. (v) To award cost for the suffering, legal expenses and harassment faced by the Petitioner. (vi) Any other order or orders or reliefs as this Hon'ble Court deem fit and proper, under the circumstances of the whole case, may kindly be allowed." 12. The facts narrated above, speak for themselves and elucidate the harassment suffered by the petitioner. The respondents have been taking different stands as is clear from letters dated 31st January, 2008, 17th December, 2008 and the....
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....g. The name of the Importer found on the packages is Element Fix Ltd., Taiwan whereas the name of the importer in the Bill of Entry and invoices is Em Pee Syndichem Ltd., New Delhi. S.A may like to see the goods." 16. Immediately, thereafter on 30th June, 2005, the petitioner applied to the Commissioner of Customs to re-export the goods. As noticed below, the custom authorities took their own time to grant permission to re-export and their conduct has been adversely commented upon. The permission for re-export was granted on 1st May, 2007, though the request was made on 30th June, 2005. Accordingly, the goods were entered for re-export on 22nd June, 2007 and on the same day request for payment of refund of duty of Rs.1,52,252 @ 98% being Rs.1,48,207/- was made. The second proviso to Section 27(1) of the Act stipulates that limitation period of one year or six months will not apply where duty and interest have been paid under protest. Under the fourth proviso to Section 27, if refund becomes payable consequent upon a judgment, decree, order or direction of an appellate authority, one year/six months have to be computed from the date of the judgment, decree, order or direct....
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....th January, 2012 by this Bench in Commission of Customs versus Indian Oil Corporation, CUSAA No. 43/2011 in, which reference is made to Mafatlal Industries Ltd. versus Union of India (1997) 5 SCC 536, CCE, Chennai versus TVS Suzuki Ltd. (2003) 156 ELT 161 (SC) and CCE versus Allied Photographic India Ltd. (2004) 4 SCC 34) 19. In the case of Garden Silk Ltd. (supra), the question which had arisen and was decided by the Supreme Court related to computation of import value and whether landing charges, when and after the goods have been discharged from the ship, could be added. In this context, Sections 12, 14 and 15 of the Act were interpreted. It was held that Section 14 is a deeming provision and the legislative intent is clear that the actual price of the imported goods would include the landing costs. While examining the said contention, the Supreme Court held that the taxable event is reached at the time when the goods reach the customs barrier and the bill of entry for home consumption is filed. The goods are imported into India when they enter the territorial waters as per Section 12 of the Act, but it continues and the import is complete when the goods become part of....
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....s to taxpayers." 21. The second contention is also without merit. The circular No. 100/2003-CUS dated 28th November, 2003, reads as under:- "I am directed to refer to the instructions contained in Board's letter F-No.18/1/59-Cus.(CRC), dated 08.06.1959 on the above mentioned subject wherein it was stated that the importer intends to re-export the same, the Commissioner may use his discretion and release the goods on payment of a nominal penalty or without any penalty as he deems fit, provided that he is satisfied that the goods have been imported as a result of bona fide mistake and contrary to the Importer's instructions subject to production of a "no objection certificate" from the Reserve Bank of India for re-shipment of the goods. In this regard, trade has expressed difficulties in obtaining the "NOC" from RBI and stated that, at times, it takes a minimum of one week to obtain the certificate. Therefore, they have requested for allowing re-shipment without insisting on the production of "NOC" from RBI. The matter has been examined in consultation with the Reserve Bank of India who have opined that the "NOC" from RBI need not be insisted from re-export of suc....
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....ion for imposition of the penalty was stated. This order was passed on the administrative side and was not communicated to the petitioner till vide letter dated 24th December, 2008. The relevant portion of the order as recorded in the letter dated 24th December, 2008, reads as under:- "Let re-export be allowed as per procedure in view of the facts stated on payment of a penalty of Rs.10,000." 23. This order was passed without hearing the petitioner and does not state and justify any reason why a penalty of Rs.10,000/- has been imposed. The circular quoted above gives discretion to the authorities to judiciously and in a fair manner decide whether or not to impose penalty/fine. The order passed shows complete arbitrariness and lack of objectivity. The question of bonafide mistake and whether the import was contrary to the petitioner's order was not given due weightage as required vide circular No. 100/2003-CUS dated 28th November, 2003. The order of penalty, therefore, has to be quashed. Plea of alternate remedy raised by the respondents in the facts of the case has to be rejected. The petitioner has been made to go through several proceedings, furnish NOC, etc. ....