TaxTMI 
TaxTMI 
2022 (11) TMI 1015
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....evelopment Commissioner SEEPZ Special Economic Zone M/s. Jewelex India Pvt. Limited versus Union of India, The Commissioner of Customs , The Assistant Commissioner of Customs, The Secretary, Ministry of Commerce & Industry, The Development Commissioner SEEPZ Special Economic Zone M/s. Bombay Jewellery Manufacturers, M/s. Bombay Jewellery Manufactures Pvt. Ltd. Versus Union of India , The Commissioner of Customs , The Assistant Commissioner of Customs , The Secretary, Ministry of Commerce & Industry, The Development Commissioner SEEPZ Special Economic Zone M/s. M.K. Versus Union of India , The Commissioner of Customs, The Assistant Commissioner of Customs , The Secretary, Ministry of Commerce & Industry, The Development Commissioner SEEPZ Special Economic Zone NOTICE OF MOTION NO.565 OF 2010 WITH INTERIM APPLICATION (L) NO.10284 OF 2021 IN WRIT PETITION NO.2003 OF 2009 WITH NOTICE OF MOTION NO.569 OF 2010 WITH INTERIM APPLICATION (L) NO.10307 OF 2021 IN WRIT PETITION NO.2004 OF 2009 WITH NOTICE OF MOTION NO.564 OF 2010 WITH INTERIM APPLICATION (L) NO.10373 OF 2021 IN WRIT PETITION NO.1945 OF 2009 WITH NOTICE OF MOTION NO.567 OF 2010 WITH INTERIM APPLICATION (L) NO.10376 ....
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....ment Commissioner, SEEPZ ('DC') being a license to manufacture and export all kind of jewellery - plain as well as studded. Upon coming into force of the SEZ Act, in terms of the proviso to Section 15(1) thereof, existing units did not require approval under the SEZ Act. 4 Prior to the amendment to the SEZ Act, imports into the SEZs were governed by the provisions of the Foreign Trade Policy, 2002 ('FTP') issued under the Foreign Trade (Development & Regulation) Act, 1992 ('FTDR Act') and erstwhile Chapter XA of the Customs Act, 1962 ('Customs Act'). The SEZ Act came into force on 10th February 2006 to provide for the establishment, development and management of the Special Economic Zones for the promotion of exports and for matters connected therewith or incidental thereto. The Special Economic Zones Rules, 2006 ('SEZ Rules') were formulated under Section 55 of the SEZ Act and came into force on 10th February 2006. The Government of India issued a notification dated 14th March 2006 declaring SEEPZ shall be deemed to be a port under Section 7 of the Customs Act and the provisions contained in Chapter XA of the Customs Act and the SEZ Rules, 2003 and the Special Economic Zones (C....
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....aking of fresh jewellery with or without additions. 6 However, petitioner is not merely importing finished jewellery as its only raw material for the manufacturing process and the majority of its raw material, imports comprise of gold and other precious metals in its raw form. Petitioner states that only 16.70% of its total imports are reimported finished jewellery which are repurchased from overseas buyers and is the subject matter of the present dispute. 7 In the course of its business, petitioner imported a consignment of gold and silver jewellery for remaking vide Bill of Entry No.100856 dated 9th February 2009 ('Bill of Entry') declaring the same as 'Gold and Silver Jewellery Dia Studded 9 and 18 KT Gold and Silver Jewellery (REMAKING ON OUTRIGHT BASIS)' ('the Consignment') with an assessable value of Rs.5,36,781/- (Rupees Five Lakhs Thirty Six Thousand Seven Hundred and Eighty One Only). The Consignment was to be delivered at the SEZ CARGO as can be seen printed at the top right of the Bill of Entry. A declaration was also filed with the Bill of Entry which inter alia declared that the goods covered by the Bill of Entry have been imported on an out-right purchase / cons....
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....not be confiscated under Section 111(d) and (m) and penalty under Section 112 and 114A of the Customs Act be not imposed. This was followed by an Addendum / Corrigendum dated 21st July 2009 to the show cause notice issued by Respondent No.3. Another Addendum / Corrigendum dated 18th August 2009 to the show cause notice was issued by Respondent No.3 whereby amendments to the show cause notice were effected and now sought to include Sections 28, 28AB of the Customs Act. 12 Petitioner filed this writ petition on 4th September 2009 inter alia seeking an order to set aside or quash the show cause notices. Affidavit/s in reply to the petition were filed by the Deputy DC on 10th February 2010 and 29th April 2010 which inter alia stated that (i) the provisions of the SEZ Act is a code in itself and has an overriding effect by virtue of Section 51 of the SEZ Act, (ii) by virtue of Section 53 of the SEZ Act, a SEZ shall on and from the appointed date be deemed to be a territory outside the Customs territory of India for the purposes of undertaking the authorised operations, (iii) placed on record Instruction No.51 dated 25th March 2010 which inter alia records that all SEZ units are requi....
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.... cleared in the past alongwith fine of Rs.80,00,00,000/- (ii) Recovery of duty of Rs.43,77,44,781/- alongwith applicable interest (iii) Penalty of Rs. 43,77,44,781/-. 17 The petition was subsequently amended by way of a chamber summons and the aforesaid reply to the show cause notice and impugned order was brought on record and the challenge in the petition was modified to include a challenge to the impugned order as well. 18 The short point involved is whether petitioner is permitted to import new/unused jewellery for remaking after melting the same. As aforesaid, Customs say "no", while the DC says "yes". 19 At the outset, Mr. Kantharia submitted that Rule has been issued only on the issue of jurisdiction and petitioner has an alternative remedy to challenge the order dated 19th August 2010 by filing an appeal. Petitioner had approached this Court in its writ jurisdiction under Article 226 of the Constitution of India on the ground that the Customs Department did not have jurisdiction to investigate, seize and issue show cause notice against petitioner after coming into force of SEZ Act. In the affidavit in reply dated 25th November 2009, the Customs De....
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....e and efficacious remedy of statutory appeal available to petitioner under the provisions of the Customs Act. Courts have consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under constitutional provisions. Mr. Kantharia concluded, on the issue of alternate remedy that in view of the settled position in law as laid down by the plethora of judgments of the Hon'ble Supreme Court of India and other High Court on the issue of alternate and efficacious remedy of statutory appeal, the petition deserves to be disposed inter alia with directions to petitioner to pursue the alternate and efficacious remedy of statutory appeal following due process of law. Mr. Kantharia relied upon various judgments in support of this submission. 20 At this stage of final hearing, we are not inclined to relegate petitioner to pursue the alternate remedy in as much as it is settled law that availability of an alternate remedy does not prohibit the High Court from entertaining a writ petition. The High Court may entertain a writ petition notwithstanding the availability of an alternate remedy part....
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....h the declaration made under section 77 2[in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54; SECTION 112. Penalty for improper importation of goods, etc. -Any person,- (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act. SECTION 114. Penalty for attempt to export goods improperly, etc.-Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable,- (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty 1[2[not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act]], whichever is the greater. SECTION 28. Notice for payment of duties, interest, etc.- (1) When any duty has n....
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.... notice) and thereupon such person shall pay the amount so determined: [Provided that if such person has paid the duty in full together with interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 135, 135A and 140, be deemed to be conclusive as to the matters stated therein: Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the proper officer shall determine the amount of duty or interest not being in excess of the amount partly due from such person.] [(2A) Where any notice has been served on a person under sub-section (1), the proper officer,- (i) In case any duty has not been levied or has been short-levied, or the interest has not been paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, where it is possible to do so, shall determine the amount of such duty or the interest, within a period of one year; and (ii) In any other case, where it is possible to d....
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.... charged, the date on which the proper officer makes an order for the clearance of the goods; (b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof; (c) in a case where duty or interest has been erroneously refunded, date of refund; (d) in any other case, the date of payment of duty or interest.] Mr. Nankani's submissions : 22 Under Section 111 of the Customs Act goods which are liable for confiscation are those which have been imported or attempted to be imported contrary to any prohibition under the Customs Act or any other law for the time being in force. In connection therewith it lists out various scenarios how the goods could be improperly imported. Section 11 of the Customs Act provides for power of the Central Government to prohibit importation or exportation of goods. The prohibitions under the Customs Act are imposed by way of notifications issued under Section 11 of the Customs Act. There is no notification or prohibition issued under Section 11 of the Customs Act prohibiting the import of finished jewellery into a SEZ for the purpose of remaking. This has no....
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....f Entry and imported goods which does not find mention as raw materials in the LOP issued by the DC and (b) petitioner ought to have filed a declaration in terms of Rule 29(7) of the SEZ Rules for reimporting goods which were earlier exported by it. If petitioner had not complied with the requirements of the LOP issued by respondent no.5 - DC, respondent no.5 would have taken action under the provisions of SEZ Act and SEZ Rules framed thereunder. Not even a notice has been issued to petitioner for alleged violation of LOP Rules and on the contrary, DC has filed an affidavit stating that petitioner did nothing wrong. 22.6 As regards the alleged violation of Rule 29(7) of the SEZ Rules, there is not even a reference thereto in the show cause notice. The show cause notice must contain all allegations for a party to effectively deal with it and respondents cannot be permitted to improve upon the show cause notice or the impugned order by way of filing an affidavit in Court. This entire issue was raised for the first time in the affidavit dated 25th November 2009. Consequently, the charge under Section 111 of the Customs Act has to fail. 22.7 As regards Section 28 of the Customs A....
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....self-declaration, while filing Bills of Entry inter-alia whether the jewellery being imported is "New or Old" or "out of fashion/trend" or scrap jewellery or manufactured and exported by it or re-import of self-exported jewellery because of payment issues suffered by petitioner. The declaration in the import invoice and the bill of entry is silent on these aspects. Further, as brought out in the investigations, petitioner, by its admittance, resorted to route the goods through remaking with full awareness that the self-exported jewellery attracted the provisions of Rule 29(7) to hoodwink the Customs and committed gross willful violations of the SEZ provisions read with Section 46(4) of the Customs Act and Rule 11 of Foreign Trade (Regulation) Rules, 1993. (e) Petitioner imported their self-exported jewellery for remaking, allegedly under outright purchase basis. However, there is no selfdeclaration at the time of import that the jewellery being imported was earlier exported by them. New jewellery, which is neither damaged nor defective, is not covered under Rule 29(7) of the SEZ Rule, 2006. Petitioners have re-imported their earlier exported jewellery, which should have been dec....
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....signments of finished jewellery, imported by petitioner during 1st April, 2005 to 6th March 2009, and the consignment under seizure, were/are imported in violation of the provisions of para 4A 21 of the Foreign Trade Policy in vogue at the relevant time. These goods, therefore, were liable to confiscation under the provisions of Section 111(d) and (m) of the Customs Act and for the acts of omission and commission, petitioner is also liable to penal action under Section 112(a) of Customs Act. (h) Petitioner has violated Section 28 of the Customs Act. Moreover, Instruction No.6 dated 3rd August 2006 issued by the Ministry of Commerce, categorically mentions that the provisions of Sections 20, 21, and 22 of the SEZ Act are not operationalized. Hence, so long as these sections are not operationalized, different agencies and officers, as empowered under the relevant legislations before enactment of the SEZ Act will continue to operate till such time these provisions of the SEZ Act take effect. Respondent Custom authority has therefore rightly exercised its powers under the Customs Act. (i) The Customs Department has recorded the statements of one Dilip Bhogilal Joshi, Vice Preside....
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....ment of import and domestic procurement was on the basis of self-declaration. (m) The Adjudicating Authority has given categorical findings of facts that the unit's declaration in the Bill of Entry was not true and lacked full particulars. The unit had also not declared the true nature of the goods in the Bill of Entry or the invoice as to whether, the jewellery being imported, was new or old or self-exported or scrap jewellery. This is also evident from the statement of the Manager EXIM, of the unit, who had deposed that the consignment imported vide Bill of Entry No.100856 dated 9th February 2009, was imported as scrap jewellery. However, no such particulars found mentioned in the Bill of Entry or the corresponding Invoice. On the contrary, on physical examination of the subject consignment, it was found to contain brand new jewellery in show room condition, complete with tags and bar codes. (n) Thus in terms of the provisions of the Section 46 of the Customs Act an importer is under obligation to declare the true and correct description and value in the Bill of Entry. This obligation is strict and absolute. Under the circumstances, it was incumbent upon petitioner to ensur....
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....of the Customs Act. (q) The Adjudication authority has arrived at findings of facts from the records submitted by the unit during investigation, that they had imported 1160 consignments of finished jewellery during the period April, 2005 to March, 2009. The total assessable value of these consignments was Rs.276,43,07,644/- and the exemption from the Customs duty availed under the provisions of SEZ Rules, is to the tune of Rs.43,77,44,781/-. The unit claimed the subject goods to be scrap jewellery used as part of raw material for the manufacture of jewellery. That claim is devoid of merit. The unit by their own submissions and admittance has accepted that they never declared in any of the documents, including the import documents, filed for the clearance of these consignments, that the said consignments of jewellery were the same which were earlier exported by them, or whether the jewellery in question was new or old / used or out of fashion. The unit has, therefore, by such acts of suppression, availed the benefit of the Customs duty exemptions on the goods which were otherwise not permissible to them under the given circumstances. Their claim, that the unit was audited by the ....
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....shed goods, (including semi-finished Jewellery) component, consumables, spares goods and materials for making capital goods required for authorized operations except prohibited items under the Import Trade Control (Harmonized System) Classifications of Export and Import Items : (2) In case of any doubt as to whether any goods or services are required by a Unit or Developer for authorized operations or not, it shall be decided by the Development Commissioner. xxxxxxxxxxxxxx (10) The assessment of imports and domestic procurement by a Developer or a Unit, shall be on the basis of self-declaration and shall not be subjected to routine examination except in case of procurement from the Domestic Tariff Area under the claim of export entitlements : Provided that where based on a prior intelligence the examination becomes necessary the same shall be carried out by the Authorised Officer(s) after obtaining written permission from the Development Commissioner or the Specified Officer. xxxxxxxxxxxxxx Rule 28. (1) A Unit or Developer may import goods directly into the Special Economic Zone or through any other - xxxxxxxxxxxxxx ....
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....ng entries in the warehouse register and detention receipt register; (vi) after release, the goods shall either be moved to the Unit under the Customs escort or shall be delivered to the Custodian or authorized representative of the Unit after sealing; (vii) the goods shall be allowed to be taken to the Unit after verification of marks and number of packages by the Authorized Officer at the gate of entry of the Special Economic Zone. xxxxxxxxxxxxxx (7) A Unit may import the goods exported by it which are either found to be defective or damaged by the overseas buyer or have not been taken delivery of by the overseas buyer or when the payment is not forthcoming from the buyer as per agreed schedule after having taken delivery of goods or when buyers return goods due to change of fashion and other market factors by following the procedure under sub-rule (2) and subject to the following conditions, namely :- (i) the identity of the goods is established at the time of reimport; and (ii) the goods are re-imported within the warranty period or the validity of the maintenance contract or a period of one year from the date of export, whi....
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....iously manufactured or are processed or are still in a raw or natural state. In view of Rule 2 (u) of the SEZ Rules, read with Rule 27 (1) of the SEZ Rules, there is no restriction on the import of jewellery for authorized operations as even previously manufactured items, viz., finished jewellery earlier exported in the present case, can be imported into a SEZ as "raw material". The definition of 'raw material' as per Rule 2 (u) of the SEZ Rules is reproduced hereunder: (a) basic materials which are needed for the manufacture of goods, but which are still in a raw, natural, unrefined or unmanufactured state, and (b) any materials or goods which are required for the manufacturing process (including catalysts for initial charge), packing material, whether they have actually been previously manufactured or are processed or are still in a raw or natural state. Further, this position has also been clarified by the Ministry of Commerce vide its Instruction No.37 dated 7th September, 2009, the relevant extract of which is reproduced hereunder : 2. In view of the provisions contained in Section 2 (r) of SEZ Act, 2005 read with Rule 27(1) of SEZ Rules, it is cl....
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....icate, assemble, process or bring into existence, by hand or by machine, a new product having a distinctive name, character or use and shall include processes such as refrigeration, cutting, polishing, blending, repair, remaking, re-engineering and includes agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisciculture, poultry, sericulture, viticulture and mining". I therefore say and submit that in terms of Sec.2 (r) of the SEZ Act, 2005, manufacture among other things, mean repair, remaking, re-engineering, etc. 9. I say that the definition of manufacture given in the SEZ Act, 2005 prevails over other definitions given in any other statue and the same shall have no relevance in interpreting the terms defined and the meaning given in the SEZ Act, 2005. The definition of manufacture given in the SEZ Act shall prevail over other definitions of manufacture given in other enactments. I say that by virtue of Sec. 9 (3) of the Act, the power to decide as to whether a particular activity constitutes "Manufacture" is vested in the Board of Approval constituted under Sec. 8 (1) of the Act and its decision shall be binding on all Ministries and Depar....
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.... as covered under manufacture in terms of Section 2(r) of the SEZ Act, 2005 and import for repair of finished products manufactured elsewhere is allowed in the SEZ Act, 2005 and Rules. Thus, it is evidence from the clarification given that repairs can be considered as covered under manufacture, irrespective of where the items have been manufactured and the second part of the clarification makes it very clear that repairs even for finished products manufactured elsewhere is permitted under SEZ Act, 2005 and Rules and thereby giving a wider connotation to the meaning of the "Repair" under definition of manufacture in the SEZ Act, 2005. xxxxxxxxxxxxxx 16. I further say and submit that Para 4(A.21) of the Foreign Trade Policy is not applicable to SEZ units, as Chapter VII of the Foreign Trade Policy very clearly states that the Policy relating to the Special Economic Zone is covered by SEZ Act, 2005 and the Rules framed thereunder. 17. I say and submit that the finished jewellery imported by the Petitioners under Rule 27 (1) of the SEZ Rules are permitted for import for carrying out the authorized operation, i.e. Manufacture of Jewellery, which has been speci....
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....[any goods which do not correspond in respect of value or in any other particular) with the entry made under this Act or in the case of baggage with the declaration made under section 77 [in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54]; Respondent no.2 has completely failed to appreciate the true intent and purport of Section 111(m) of the Customs Act while invoking the same. For invoking Section 111(m) of the Customs Act, the declaration made in an entry under the Customs Act, which is the Bill of Entry filed under Section 46 of the Customs Act, must fail to correspond, in value or any other particular, to the goods actually imported by petitioner. Accordingly, in our view, Section 111(m) deals with intentional misdeclaration and mis-match between what has been declared on the Bill of Entry and what has actually been imported by the importer. In the facts of the present case, there is absolutely no misdeclaration between the description and / or value declared in the Bill of Entry and the goods actually imported by petitioner, both being diamond studded gold ....
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...., for issuance of a licence, that an applicant set out the quantity or value of the indigenous components which would be used in the manufacture. Undoubtedly, while applying for a licence, the appellants set out the components they would use and their value. However, the value was only an estimate. It is not the respondents' case that the components were not used. The only case is that the value which had been indicated in the application was very large whereas what was actually spent was a paltry amount. To be noted that the licensing Authority having taken no steps to cancel the licence. The licensing authority have not claimed that there was any misrepresentation. Once an advance licence was issued and not questioned by the licensing authority, the customs authorities cannot refuse exemption on an allegation that there was misrepresentation. If there was any misrepresentation, it was for the licensing authority to take steps in that behalf. B. Alleged Violation of Rule 29(7) of the SEZ Rules : (a) At the outset, there is no allegation in the SCN and / or no finding in the impugned order with respect to any alleged violation of Rule 29(7) of SEZ Rules. This entire issue....
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....exported 100% of its production and that was not contested. 35 In view of the above, respondent no.2 has completely erred in invoking Section 111(m) of the Customs Act. III. Section 28 of the Customs Act : 36 Apart from making sweeping and bald statements both in the show cause notice as well as in the impugned order, respondent no.2 has not dealt with the issue of demanding customs duty under Section 28 of the Customs Act at all. Respondent no.2 has arbitrarily invoked Section 28 that too by way of a Corrigendum to the show cause notice, without even dealing with as to how violations, if any, of provisions of SEZ Act or SEZ Rules, disturbs the blanket exemption available to petitioner in terms of Section 26 of the SEZ Act, the relevant extract of which is reproduced hereunder : (1) Subject to the provisions of sub-section (2), every Developer and the entrepreneur shall be entitled to the following exemptions, drawbacks and concessions, namely :-- (a) exemption from any duty of customs, under the Customs Act, 1962 (52 of 1962) or the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods imported into, or services pro....
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....approval was granted to the entrepreneur, cancel the letter of approval: Provided that no such letter of approval shall be cancelled unless the entrepreneur has been afforded a reasonable opportunity of being heard. (2) Where the letter of approval has been cancelled under subsection (1), the Unit shall not, from the date of such cancellation, be entitled to any exemption, concession, benefit or deduction available to it, being a Unit, under this Act. (3) Without prejudice to the provisions of this Act, the entrepreneur whose letter of approval has been cancelled under sub-section (1), shall remit, the exemption, concession, drawback and any other benefit availed by him in respect of the capital goods, finished goods lying in stock and unutilised raw materials relatable to his Unit, in such manner as may be prescribed." A proposed unit submits application for a SEZ LOP under Section 15(1) of the SEZ Act. The said application after due consideration by the Approval Committee alongwith the DC is either rejected or processed under Section 15(3) of the SEZ Act. Once the Unit's application is accepted and the LOP is issued, the Unit attains a SEZ Unit statu....
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....e benefit of MODVAT credit to the assessee during the relevant period (October 1998 to January 1999) under Rule 57-D. As repeatedly held by this Court, show-cause notice is the foundation of the demand under the Central Excise Act and if the show-cause notice in the present case itself proceeds on the basis that the product in question is a by-product and not a final product, them, in that event, we need not answer the larger question of law framed hereinabove. 10. On this short point, we are in agreement with the view expressed by the Tribunal that nowhere in the show-cause notice it has been alleged by the Department that lean gas is a final product. Ultimately, an assessee is required to reply to the show-cause notice and if the allegation proceeds on the basis that lean gas is a by-product, then there is no question of the assessee disputing that statement made in the show-cause notice. (b) Commissioner of Customs V/s. Toyo Engineering (2006) 7 SCC 592. Paragraph 16 of the said judgment reads as under : 16. Learned counsel for the Revenue tried to raise some of the submissions which were not allowed to be raised by the Tribunal before us, as well. We agree ....