TaxTMI 
TaxTMI 
2014 (3) TMI 136
X X X X Extracts X X X X
X X X X Extracts X X X X
....2.2009 sent a pre-shipment alert to Etisalat regarding consignments proposed to be moved (by the petitioner) on 12.12.2009 and 15.12.2009. On 08.12.2009, the second respondent, the Central Government issued a Notification (No. 132/2009-Customs) by which import of all kinds of Synchronous Digital Hierarchy (SDH) Transmission Equipment originating from or exported from China and Israel were liable to attract anti-dumping duties. The said Notification was made public on 11.12.2009. Etisalat, on becoming aware of that notification, cancelled the SDH line items, i.e. the goods from the PO issued to the petitioner, the overseas supplier. Etisalat thereafter sought permission of the first respondent, the Commissioner of Customs to re-export the goods. This request was rejected by the said first respondent, by order of 08.06.2010. 3. Etisalat, feeling aggrieved by the first respondent's refusal of permission to re-export the goods, filed Customs Appeal No. C/490/2010 before the Customs, Excise and Service Tax Appellate Tribunal ("the CESTAT"). However, thereafter an application for withdrawal of Customs Appeal (being Custom Misc. Application No. 390 of 2011) was filed by Etisalat before....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Kolkata Commissioner dated 25.02.2010 where it was held that such goods were not misdeclared and, more importantly, that they could be re-exported without payment of duty. Counsel also relied upon Union of India v. Sampat Raj Dugar & Anr AIR 1992 SC 1417. 7. The first respondent urges in its counter affidavit, and its counsel Mr. Satish Kumar argues before the Court that the petitioner should not be afforded any relief. It is submitted that the while passing the Order-in-Original of 08.06.2010, the Commissioner (I&G) took into consideration all submissions by the importer. Counsel particularly highlighted that the order of the Commissioner impugned in this case became final, because Etisalat's appeal directed against it was withdrawn without any liberty to re-agitate the issue. It is also contended that the Commissioner passed a well-reasoned and speaking order after giving opportunity of hearing to the importer and on consideration of all facts, which were presented to him by the importer during adjudication. Counsel argues that in fact, the order of the Kolkata Commissioner was made after the Order-in-Original in this case was issued; it was made on 01.07.2010. It is further ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... effect abandoning them. The foreign supplier appeared in the proceedings, and contended that title to the goods had not passed to the purchaser, and that it continued as owner; the goods could not, therefore, be confiscated or proceeded against for the purchaser's transgression of the law and that since the supplier was in the dark on this aspect, he ought to be permitted to re-export the goods. The revenue had rejected this request; the High Court granted the relief. When proceedings were pending the licenses were cancelled. 10. In the above background of facts, the Supreme Court upheld the judgment of the High Court - which like in this case, had been directly approached by the foreign supplier. The Court also discussed relevant provisions of the prevalent Import Control Order, and observed as follows: "19......................The exporter is outside the country, while the importer, i.e. the licensee is in India. It is at the instance of the licensee that the goods are imported into this country. Whether or not he is the owner of such goods in law, the Imports (Control) Order creates a fiction that he shall be deemed to be the owner of the such goods from the time of their....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esent before the Collector (Customs) as well as before the High Court. R2 did not plead any such arrangement." 11. It is, therefore, clear from Dugar (supra) that when the goods are virtually abandoned by the importer/purchaser, as in this case, so long as ownership continues with the supplier, his request for their return through re-export cannot be turned down. In the present case, the order impugned by the petitioner does not allege that the goods were either mis-declared or wrongly classified or valued. In fact the revised PO supports the petitioner's grievance that the importer was categorical in its intention not to take the goods and incur further anti-dumping duty liability. The importer- like in Dugar (supra), abandoned the matter and even withdrew the appeal which it appeared to have filed before the CESTAT, primarily to aid the petitioner. In Etisalat's appeal before CESTAT, which has been produced in these proceedings and strongly relied upon by the petitioner, it was urged, inter alia, that: "18. That the supplier of the said SDH Equipment, i.e ZTE China had further consented to take the materials back and had not received any payment in lieu of the said supply. ....