TaxTMI 
TaxTMI 
2020 (2) TMI 1239
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the IGST; (B) be pleased to issue a writ of mandamus or writ in the nature of mandamus ordering and directing the respondents their subordinates, servants and agents to forthwith (I) permit the petitioner to export/re-export the goods without including amount of IGST in the calculation of the amount of bank guarantee and (ii) to accept the bank guarantee as furnished by the petitioner on the undertaking of the petitioner that the said guarantee will be renewed from time to time till the completion of adjudication; (C) during the pendency and final disposal of the present petition, be pleased to direct the respondents to allow the petitioner to export the seized goods and accept the Bank Guarantee of Rs. 9,18,723/­ already furnished by the petitioner on the undertaking of the petitioner to renew the same from time to time till completion of adjudication proceedings; (D) any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted; 3. The facts of the case may be summarized as under:­ 3.1 The petitioner is a private limited company and is an approved SEZ unit under the Special Economic Z....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reads as under:­ "1. The petitioner has challenged a condition contained in the communication dated 03.07.2018 to enable the petitioner to re-export the consignment of goods which the petitioner desired to import. The litigation has longish history. We may record only relevant facts. 2. The petitioner is a private limited company and has a manufacturing unit in SEZ, Kandla. The petitioner had imported a consignment of various kinds of dried batteries and other electronic items. The Customs authorities, Kandla however, detained the goods on 08.01.2018 on prima facie doubt about its correct valuation as declared by the petitioner. After attempting to secure the provisional release thereof for sometime, the petitioner finally conveyed to the departmental authorities that the petitioner no longer wishes to clear the goods. The same may be permitted to be re-­exported. The competent authority by the impugned communication conveyed to the petitioner its permission to do so however, subject to the condition that the petitioner executes a bond for the full value of the goods in question re-determined by the DRI and of furnishing a bank guarantee equivalent to 25% ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rent situations. The prescription of penalties is by maximum permissible ceiling. It is not necessary to impose maximum possible penalties in every case. 7. Considering such facts and circumstances of the case, we modify the condition of Bank Guarantee to 25% of the customs duty that may be leviable on the re­determined value of the goods. The condition for providing bond for the remaining value of the goods remains unchanged upon which condition being fulfilled within three weeks, the petitioner may be permitted to re-export the goods. Petition is disposed of." 3.8 Thus, the respondent no.2 could not have asked for any other amount or bank guarantee except 25% of the customs duty as directed by this Court that may be leviable on the re­determined value of the goods. However, vide communication dated 07th September, 2018, the respondent no.3 insisted for payment of 25% bank guarantee on the amount of IGST leviable on the re­determined value of goods. The letter dated 07th September, 2018 reads as under:­ OFFICE OF THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, NEAR BALAJI TEMPLE, KANDLA Phone:02836­271468/9 Fax: 02836­271467 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of the goods for re­-export. The re­determined Custom Duty comes to Rs. 97,55,625/­ for Sr. No.1 to 6 o the Annexure 'B' to the seizure memo dated 07.03.18 and its 25% comes to Rs. 24,38,906/­, however, you have furnished Bank Guarantee of Rs. 9,18,723/­ by way of not adding the element of IGST part which makes them short of Rs. 15,20,183/­. The said Bank Guarantee submitted by you does not contain the necessary auto renewal clause; hence, the BG is not acceptable. In view of the above, you are required to furnish Bank Guarantee for remaining amount of Rs. 15,20,183/­ for releasing the goods provisionally for re­-export and further, you are requested to furnish Bank Guarantee with a condition of auto renewal clause without any over­riding clause till the issue involved gets finality from the concerned Bank. Therefore, it is requested to do needful in the matter as earliest. Yours Sincerely, sd/­ (Yatish G. Patil) Deputy Commissioner (Adj.) 3.9 The petitioner, therefore, has approached this Court challenging the communication dated 07th September, 2018. 4. A co­ordinate bench of this Court by ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the said sum. 3. Learned counsel for the petitioner submitted that on the import of goods, no IGST was to be levied since the petitioner Unit was situated in a SEZ. The competent authority has completely ignored this aspect of the matter while computing the Customs Duty on the re-determined value of goods. Hence, the difference. He further submitted that the goods are lying unutilized since long and are fast deteriorating. 4. Considering the issues arising, let there be Notice, returnable on 25.10.2018. By way of ad­-interim relief, the respondents are directed to permit re-export of the goods in question on condition that the Director of the petitioner Company files an Undertaking before this Court latest by 09.10.2018 that eventually, if the Court does not accept the petitioner's contention noted above, then the petitioner shall furnish the remaining Bank Guarantee. 5. Direct service for respondent nos.2 & 3 is permitted." 5. The learned counsel appearing for the petitioner submitted that there is no provision for levy of IGST either on the imported goods or the exported goods under the provision of Integrated Goods and Services Tax Act, 2017. He....