TaxTMI 
TaxTMI 
2005 (12) TMI 570
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....410000273 13/06/2000 322469.00 9 2410000495 31/07/2000 94367.00 10 2410000543 28/08/2000 39113.00 11 2410000555 28/08/2000 36987.00 12 2410000827 04/10/2000 125188.00 (B) Your Lordships may be pleased to issue a writ of mandamus, or a writ in the nature of mandamus holding and declaring that the Customs authorities have no jurisdiction to verify the classification of exported goods and the rate of credit decided by the DGFT authorities for the DEPB licenses and that the action of the Customs authorities in seeking to verify such details in the present case is illegal and unauthorised; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents No. 2 and 3 herein to forthwith return the original 12 DEPB Licences Nos. RAJ-2400897, RAJ-2400907, RAJ-2400940, RAJ-2400944, RAJ-2401065, 2410000078, 2410000110, 2410000273, 2410000495, 2410000543, 2410000555 & 2410000827, with their verification reports and endorsement as per para 7.43 of the Handbook of the procedure (Vol.I) 1997-2002; (D) That an ex-parte ad-interim relief in terms of paragraph (C) abo....
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....urt by way of the present petition seeking a direction against respondents No. 2 and 3, to return the original DEPB licences with verification reports as contemplated under paragraph 7.43 of Handbook of Procedure (Vol.I) 1997-2002. 6. Heard Mr. Uday Joshi, learned Advocate appearing on behalf of the petitioners and Mr. Y.N. Ravani, learned Additional Standing Counsel appearing on behalf of the respondents. 7. Mr. Joshi has drawn attention to the provisions of the Export and Import Policy, 1997-2002 (EXIM Policy) and more particularly to the provisions of paragraph 7.14 thereof which makes provision for Duty Entitlement Passbook Scheme (DEPB). The learned Advocate had also drawn attention to the provisions of paragraph 7.43 of Part-II of Handbook of Procedures, which deals with the verification by the Customs Authorities of the details of exports, as given on the DEPB. It is contended that the Customs Authorities are only required to verify as to whether the details of the exports as given on the DEPB, are as per the records. It is submitted that the role of the officers of the Customs Department being limited to verification of Page 155 details of export as given on the DEPB ....
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....importer or by any licensing, competent or other authority for the purpose of implementing the provisions of the Act, the Rules and the Orders made thereunder and the EXIM policy. That, such procedures shall be included in the Handbook (Vol.1), Handbook (Vol.2) and in ITC (HS) and published by means of a Public Notice. Accordingly, in Handbook of Procedures (Part-II), the procedure in relation to Duty Entitlement Passbook has been set out. 12. Paragraph No. 7.38 of the Handbook provides that an application for grant under DEPB may be made to the licencing authority concerned in the manner laid down in the said paragraph. 13. Licencing authority as defined under paragraph No. 3.29 of the EXIM Policy, means the authority competent to grant licence under the Act/Order. 14. Under Section 9 of the Foreign Trade (Development and Regulations) Act, 1992, the Director General of Foreign Trade or an Officer authorised by him is empowered to grant or renew a licence to import or export such class or classes of goods as may be prescribed. Under sub-section (4) of Section 9, the DGFT or the officer authorised under sub-section (2) are empowered to suspend or cancel any licence granted ....
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....and other prescribed documents submitted by the exporter. Under the scheme, the only function of the Customs authorities is as prescribed under paragraph No. 7.43 of the Hand Book of Procedure, namely, to verify as to whether the details of exports as given in the DEPB are in accordance with their records. Page 157 Thus, the role of the Customs authorities is limited to verification of the details on the DEPB, to ascertain as to whether they tally with their records, and nothing more. Once the licensing authority, on consideration of the application of the exporter, holds that the goods exported by the exporter are eligible for the benefit under the DEPB scheme, it is not open to the Customs authorities to sit in appeal against an order passed by the licensing authority. The role of the Customs authorities is confined to verification of the correctness of the exporter's declaration regarding the description, quantity and FOB value of the export products and nothing more. 18. In the present case, it is not in dispute that pursuant to applications made by the petitioners seeking benefit of DEPB scheme in respect of goods exported by them vide 30 shipping bills, 12 DEPB licence....
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....rcise after taking into consideration the shipping bills presented before them at the time of export. Such an exercise consisted of classification of the goods, levying customs duty at an appropriate rate and thus discharging the duty which the Page 158 Customs Authorities were required to discharge under the provisions of the Customs Act, 1962. The stage at which the impugned action is sought to be initiated is not the stage at which the Customs Authorities can undertake the exercise to classify the goods and after correct valuation assess the duty payable. Therefore, the entire action is based on a fallacious premise as to the powers which the Customs Authorities possess. In fact, it is the very same shipping bills which had been duly processed and assessed by the Customs Authorities which have been taken into consideration and DEPB credit worked out on the basis of FOB value in Indian rupees which forms the basis for the licencing authority to issue the DEPB credit and endorse the same as required by paragraph No. 7.43 of the Handbook. 21. It requires to be noted that the view adopted by this Court has also been taken by Bombay High Court in the case of Pradip Polyfils Pvt. L....
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....bject to their furnishing Bank Guarantee for the entire credit which was given to the applicants after expiry of Licence. 25. However, it appears that despite the specific direction of this Court permitting the petitioners to avail of the total credit to the tune of Rs. 24,60,088/- subject to furnishing Bank Guarantee for the entire credit which was given to the petitioners after expiry of the licence, the petitioners did not abide by the same. Instead, the petitioners moved an application being Civil Application No. 7111 of 2005 seeking modification of the order dated 20/9/2001 to the extent that the petitioner be directed to furnish a Bank Guarantee for Rs. 3,68,307.53 instead of Rs. 24,60,088/- for availing of the benefit of the DEPB licence. The said application though filed in November, 2001 was not moved for a period of four years till 2005. In the circumstances, the petitioners having chosen not to avail of the benefit of the relief granted by this Court in Civil Application No. 8348 of 2001, the request for extension of validity period cannot be granted. 26. After the judgment was pronounced, the learned Advocate for the petitioners has sought permission to refer to a....
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.... 4. Pursuant to the said show cause notice, the respondent No. 3 passed an Order-in-Original dated 7.11.2000, holding that the petitioners are not entitled to DEPB benefits on export products covered under the Show Cause Notice and that, therefore, the DEPB credit of Rs. 1,36,972.92 is denied. 5. It is the case of the petitioners that the role of the Customs authorities is limited to verification of details of export as given on the DEPB licences as to whether they are as per their record and no more. That, once the respondent No. 4, Joint Director of Foreign Trade has granted DEPB licences in the exercise of powers conferred upon him under the Export-Import Policy framed under the provisions of the Foreign Trade (Development and Regulation) Act, 1992, the Customs authorities at the time of verification of the DEPB licences in terms of paragraph No. 7.43 of the Hand Book of Procedure cannot go behind the grant of DEPB licences and question the eligibility of the petitioners of the grant of such licences. 6. In response to the averments made in the petition the respondents have filed an affidavit-in-reply. In paragraph No. 6 thereof it has been stated as under : 6. So fa....