TaxTMI 
TaxTMI 
2016 (2) TMI 860
X X X X Extracts X X X X
X X X X Extracts X X X X
....titioner, the gold was purified, in other words, the impurities were removed and converted into pure gold and traded at different places in the country including its manufacturing unit at Bengaluru for the manufacture of jewellery. 2. It is asserted that import of gold dore bars with impurity, attracts concessional rate of customs duty and on its refinement and put into manufacture for jewellery, attracts excise duty, in other words, customs duty concession is extended only to gold dore bars. According to the petitioner, it is not for the first time during 2012-13 such imports were effected but in fact, for several years in the past imports were done, prior to Notification 12/2012 dated 17.03.2012, from M/s Perth Mint, Australia, and other parts of the world. It is further asserted that Perth Mint is a Government Company established by the Government of Australia, although the contract for the supply of the impure gold bar is with the petitioner and not as between the two governments of India and Australia. 3. Respondent No.2/Proper Officer, having cleared the import of gold dore bars during 2012-13, having undergone refinement/ purification, the 2nd respondent, thereafterwar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....andamus or any other appropriate writ, order or direction declaring that condition No.34(b) and 34(c) of Notification No.12/2012 - Customs dated 17.3.2012 (Annexure-A) has stood complied by virtue of packing list and assay certificate of The Perth Mint. c. Grant such other relief or reliefs as deemed fit and proper in the circumstances of the case in the interest of justice and equity. d. Award costs." 6. Petition is opposed by filing statement of objections of the respondents though the affidavit accompanying statement of objections is by the 2nd respondent and in addition reference is only to respondent No.2 in the statement of objections, inter alia, contending that the Central Government granted exemption from payment of duty in excess of "BCD NIL and CVD @ 2% ad valorem, for imports upto 20.01.2013 and in excess of BCD NIL and CVD @ 4% for imports w.e.f 21.01.2013 on gold dore bars having gold content not exceeding 95% vide Sl.No.318 of Notification No.12/ 2012 dated 17.03.2012, subject to fulfillment of condition No.5 and 34 of the said notification by the importer. Condition No.5 and 34(d) it is said are postimport conditions while condition Nos.34(a), 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....old dore bars, imported by them were accompanied with the packing list issued by the mining company by whom they were produced so as to demonstrate before the Customs authorities that the gold dore bars imported by them were in accordance with packing list issued by mining company by whom they were produced; and (ii) gold dore bars imported by them were not accompanied with assay certificates, which were issued by the mining company by whome they were produced or the laboratory attached to it. 9. At paragraph 2.6, it is stated that the Central Board of Excise and Customs issued clarification vide letter F.No.354/4/2012-TRU (Part-I), dated 15.04.2013 as follows: "2..........it is noted that the Perth Mint has prepared the packing list in accordance with the packing list issued by the mining company. You may, therefore, obtain the packing list issued by the mining company, and compare and correlate it with the packing list issued by the Perth Mint so as to satisfy yourself about the fulfillment of condition No.34(b) of the notification. 3. As regards the assay certificate issued by the Perth Mint giving detailed precious metal content in the dore bar, it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontext, with what authority and for what purpose the certificate was issued. In the light of the statement in the certificate that "Perth Mint is prevented from disclosing information including documentation pertaining to their customers to unrelated parties under terms contained in the Gold Corporation Act, 1987" with further statement "we are not legally permitted to disclose the name of a gold mine and we therefore do not include any reference to the name of the Australian Mine which has produced these gold dore bars", the 2nd respondent opined that petitioner cannot claim that the mines related to the Perth Mint and therefore, certificate was of no use in the view of two different packing list of mining company, hence the certification lost significance. 14. At paragraph 5.3, it is stated that condition No.34(b) of the notification stipulates that gold dore bars should be imported in accordance with the packing list issued by the mining company by whom they were produced, in response to which importer has produced list of goods in accordance with packing list issued by the Australian Mining Company by whom they were produced, prepared by Perth Mint which merely certify that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the requirements of the Notification. At paragraph 6, while making reference to condition No.34(c) of the Notification, it is stated, the best evidence that the petitioner has come up with is a self claim by Perth Mint that they are a laboratory attached to/appointed by the mining companies with not an iota of evidence in support. The 2nd respondent has extracted the claims put-forth by Perth Mint thus: "(i) Perth Mint merely claims to be having 'very close contractual relationship with all gold mining companies in Australia"; (ii) Perth Mint claims to be "a London Bullion Market Association accredited laboratory and as appointed by the Australian mining company; (iii) Perth Mint claims to be a laboratory "attached to/appointed by the mining company"; (iv) All gold dore currently being mined in Australia by commercial mining companies is supplied under contract to the Perth Mint and must be assayed by the Perth Mint under conditions contained in long term agreements between the Perth Mint and the mining companies. The Perth mint and out laboratory is required to conduct an assay to LBMA standards on the gold dore bars produced by these mi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ept the plea that Perth Mint was the manufacturer or did refine the impure gold dole bars and therefore petitioner failed to satisfy condition No.34(c) of the Notification. 21. At paragraph 7, the 2nd respondent observed that M/s MMTC PAMP (I) Limited imported gold dore bars directly from an Australian mine i.e. BCD Resources NL, Australia situated at No.1, Rifle Range Road, Beaconsfield, TAS 7270, Australia, wherein the 'packing list' and 'assaying certificate' was issued by mine itself and therefore, declined to accept the plea of the petitioner that the Assay certificate issued by Perth Mint was true and further that the non-disclosure of the mining companies by the Perth Mint is incorrect. It is in this context the 2nd respondent declined to accept the certificate issued by Perth Mint although it was admittedly a Government laboratory/refinery. 22. At paragraph 9, it is stated that pure refined gold bars is exempted from duty except rate of Basic customs duty by virtue of Sl.No.323 of Notification No.12/2012 dated 17.3.2012 as amended and not as normal rate as contended by the petitioner, while rates of duty on pure gold bars vis-à-vis impure gold b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the futile attempt of the respondent to desperately disown the certificate of Chamber of Commerce. 24. The rejoinder to paragraph 5.3 of the statement of objections, it is stated that condition No.34(b) states that the "goods are imported accordance with the packing list issued by the mining company" and therefore, there was a requirement of issuing a 'packing list' of the mining company, the condition would have read " the goods are imported with the packing list issued by the mining company". The difference between the two is use of the words "in accordance". According to the petitioner there was a deliberate need to do away with the requirement of the 'packing list' of the mining company by specifically providing that the goods imported are not along with and 'in accordance' with the 'packing list' issued by the mining company. Therefore, it was asserted that the 'packing list' of the mining company is not a prerequisite for import. Condition No.34(c) if read would indicate that an Assay certificate of the mining company is required and the conscious omission of the words " in accordance" makes it mandatory for an Assay certificate of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of the 2nd respondent that there was "printed format" and "handwritten chit", in rejoinder, it is stated is of no significance having regard to the fact that BCD Resources NL, a mining company in Australia had closed down its business. It is lastly stated that if regard is had to the further certificate issued by Perth Mint, Annexure-H read with the letter of confirmation, Annexure-J of the Chamber of Commerce, Australia and the clarification issued by the 1st respondent in its letter Annexure-D, petitioner had fulfilled conditions 34(a), 34(b) and 34(c) of the Notification No.12/2012 dated 17.3.2012 for import of gold dore bars. The certificate of origin, Annexure-K and the list of goods Annexure-B, as also the assay certificate Annexure-C, it is asserted, forms a formidable basis of assessment and clearance of the imported goods for own consumption. The fact that the gold dore bars imported did weigh more than 5 kgs is a foregone conclusion in the light of its admission and therefore, the import of said gold dore bars by the petitioner from Australia weighing more than 5 kgs, thus complied with condition No.34(a) of the Notification. 28. On 27.11.2014 this Court having con....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... over the details of the certified copies of records which would be made available to the petitioner and those which will not be made available to petitioner and not used against the petitioner. List on 31.08.2015." Thereafterwards an affidavit was filed by the respondent on 31.8.2015 and 16.11.2015, it was observed that the enquiry commenced by the Commissioner of Customs (Import), Air Cargo Complex (Import), New Delhi, observed to be concluded by 30th November, 2015 by providing the petitioner with all the documents sought for, while on 19.11.2015, the following order was passed: "I.A.No.2/2015 is filed by the writ petitioner for a direction to the respondents that the documents of the petitioner are in the direction of compliance with condition No.34(a), (b) and (c) of the Notification No.12/12 in the matter of import of Gold Dore Bars from Perth Mint and the same be allowed. 2. According to the applicant the order dated 7.11.2014, directed completion of the adjudication pursuant to the show cause notices, which when considered, on 16.11.2015 an order was passed directing completion of adjudication before 30.11.2015. It is further assertion of the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounsel for the petitionerapplicant. 6. In the facts and circumstances, it is apparent that there is overlapping of enquiry by the authorities. On the one hand, pursuant to Annexure 'D' clarification of the Director (TRU) to the Commissioner (I & G) stating that the Commissioner having recorded satisfaction of compliance with the clauses 34(a) (b) and (c) nevertheless, on 15.4.2013 Annexure 'G' letter calls upon the petitioner, on 18.6.2013, to submit packing list from the "mining company" in respect of all past imports of Gold Dore Bars imported from Perth Mint, Australia within a week and failure to produce the document, it would be presumed that the petitioner is unable to produce the same for requisite "correlation and comparison". Since the Commissioner (I & G) when satisfied with the petitioner's compliance with clauses 34(a), (b) and (c) in the matter of import of Gold Dore Bars from Perth Mint an undertaking of Government of Australia, the question of calling upon the petitioner to furnish packing list from Mining Company, which the Perth Mint declined to furnish, did not arise. It is on the said basis petition is filed to quash Annexure 'G&#....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be passed and if petitioner so desires to have the time extended for conclusion of adjudication over the show cause notices, may seek extension of time. 11. Although Sri.Prabhuling Navadagi, learned Additional Solicitor General submits that the hearing was fixed for today at 11.00 a.m. in terms of the e-mail that was sent to the petitioner, nevertheless, since the learned counsel for the petitioner submits that no such e-mail was received by his client and it is for the first time at 2.30 p.m. it is made known of hearing of the matter at 11.00 a.m., it is but appropriate to direct the authorities to re-fix yet another date after 25.11.2015 for personal hearing. Re-list for further orders on 25.11.2015." and on 25.11.2015 the following order was passed: "I.A.No.3/2015 is filed for extension of time for concluding the proceeding initiated by Directorate of Revenue Intelligence, while, I.A.No.4/2015 is for an order recording acceptance of respondents substantial compliance of clause 34 (a), 34(b) and 34(c) of the notification No.12/2012. On 16.11.2015, the competent authorities were directed to conclude the proceeding by 30.11.2015. It is the assertion o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er within the time to be stipulated by this Hon'ble High Court." 33. In the light of the affidavit dated 26.8.2015 filed on 29.8.2015 of Ms. Sailaja Ray Baruah, Commissioner of Customs (Import), New Delhi and the memo dated 2.12.2015 (supra) coupled with the submission of the learned Addl. Solicitor General for the respondents, the enquiry would be held by clubbing the three show cause notices dated 15.9.2014, 21.10.2014 and 26.11.2014, two of which were issued by the Directorate of Revenue Intelligence, Ahmedabad, to be heard and concluded by the 2nd respondent and that respondents undertake not to pursue Annexure-G letter dated 18.6.2013, it is needless to state that the first relief in the petition to quash Annexure 'G' letter dated 18.06.2013 does survives no more. 34. The second relief in the petition over a declaration of compliance with conditions 34(a), (b) and (c) of the Notification No.12/2012, it is seriously argued that petitioner is entitled to the relief in the light of the admission of the respondents that on the date when the imports were permitted there was implicit compliance with the aforesaid conditions of the notification and pursuant to the i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erth, an Airport in Australia. Thirdly, relevant information necessary for compliance with said condition is that each of the gold dore bars should weigh more than 5 kgs and in the instant case, the weight of each gold dore bars, as disclosed in Annexure-B, 'list of goods', demonstrates that they weighed more than 5 kgs. 37. Apparently the material on record establishes compliance with condition No.34(a) of the Notification No.12/2012. 38. Condition No.34(b) reads thus: "Goods are imported in accordance with packing list issued by the mining company by whom they were produced." A reading of the aforesaid condition requires two fold compliance: firstly, goods must be imported, which the petitioner has done. Secondly, the goods should be in accordance with the 'packing list' issued by the mining company by whom they were produced. If regard is had to Annexure-B, 'list of goods', apparently goods were imported 'in accordance with' the packing list issued by the mining company by whom the goods were produced, since assay certificate is issued by the Perth Mint, a government company constituted by the Government of Australia under the st....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the petitioner were, in fact, mined, in the circumstances is not within the control of the petitioner. The certification made by the statutory authority in the country of origin i.e. Australia, necessarily requires acceptance by the Indian Authorities and if they find anything fraudulent in the issue of such a certificate, it is for the authorities to make necessary enquiry with the Perth Mint or Government of Australia and not call upon the petitioner to secure the name of the mine where the gold bars were produced. Lastly, assay certificate must be produced before the Customs Officer by the importer. Admittedly, petitioner produced the assay certificate and the 2nd respondent accepted the same on the date when it came to the Airport, Cargo Division and was permitted to be released while granting exemption from duty under the relevant Notification. Therefore, in my opinion, exfacie, petitioner did comply with the requirements of condition No.34(c) in the matter of import of gold dore bars from Australia and the mines from Australia. 40. It is also useful to notice that there is no dispute that petitioner is an importer of gold dore bars. Even in the past, i.e., prior to Notifi....