TaxTMI 
TaxTMI 
2017 (3) TMI 494
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....t. 2. Therefore, the only defence, which has been put forth by Ms.Hema Muralikrishnan, in opposition to the reliefs sought in the writ petition, is that, the petitioner has slept over his rights, and therefore, the action should be dismissed in limine. 3. On the other hand, learned counsel for the petitioner says that not only the action of the Department in encashing the Bank Guarantee, equivalent to the value of Rs. 3,55,000/-, on the earlier occasion, was illegal, but, the impugned recovery order, would also not be sustainable in law, as the entire matter proceeded on a mistake of fact, which is, that the petitioner had not fulfilled the Export Obligation. 3.1. It is the contention of the learned counsel for the petitioner that the pe....
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....r, for payment of customs duty, with applicable rate of interest, based on a mistake, that the Export Obligation imposed on the petitioner, had been fulfilled. 4.3. As a matter of fact, it appears that the petitioner was called for hearing, on 30.07.2010, and thereafter, on two other occasions. The petitioner, appears to have not participated in the hearing, convened by the Adjudicating Authority. 4.4. Consequently, the Adjudicating Authority, vide order dated 25.04.2011, confirmed the demand of duty, amounting to Rs. 7,09,000/-. In addition, a direction was issued to pay interest on the said sum, as per the applicable rate of interest, as indicated in the aforementioned notification. 4.5. By the very same order, the Adjudicating Authori....
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....oner, on the ground that, the entire edifice of the two impugned orders, is based on a mistake of fact. It is the case of the petitioner that, since he had fulfilled the Export Obligation, there was no breach of the conditions of the bond and therefore, necessary consequential actions of either encashing the Bank Guarantee on the earlier occasion, or issuing the impugned notice, could not have followed. 9. As noted above, the Department does not dispute the fact that the EODC dated 29.07.2013 is in order, and is a genuine document. Therefore, quite clearly, both the petitioner, as well as the Department, seem to have, for the reasons best known to them, allowed the matters to lie. The Department did not enforce the Order-in-Original, dated....
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.... Bank Guarantee furnished by the petitioner equivalent to a sum of Rs. 3,55,000/-, was, clearly, unlawful. 11.3. The more recent action of issuing the impugned recovery notice dated 05.08.2016, to my mind, only compounds the illegality. 11.4. As correctly pointed out by the learned counsel for the petitioner, both the Order-in-original and the recovery notice proceed on an erroneous basis that the petitioner had violated the obligations reflected in the bond executed by him. 12. The State, in my view, cannot, thus, levy, retain or collect duty from the petitioner, which is based on an erroneous premise that the petitioner had not fulfilled his export obligations. 13. However, given the fact, as noticed above, that the petitioner had sle....