TaxTMI 
TaxTMI 
TaxTMI 
2005 (10) TMI 86
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.... Bombay. 3. It is the case of the petitioner that before utilisation of the said licence, the petitioner applied to the Licensing authorities at Delhi for change of Port of registration from Bombay to New Delhi and the same was allowed by the licensing authorities at New Delhi. Thereafter, the petitioner imported raw materials under the said advance licence at New Delhi by air. The said raw materials were allowed duty free clearance as per Notification No. 203/92-Cus., dated 19-5-1992 under the above value based advance licence. On fulfilment of the export obligation the petitioner applied for discharge of bond/legal undertaking alongwith the requisite certificate from the Range Superintendent, Central Excise, NOIDA regarding non-availment of input stage credit under Rule 50A or 57A of Central Excise Rules, 1944. The licensing authorities at New Delhi, after due verification of the documents have issued discharge certificate on 14-2-1997 in favour of the petitioner. 4. Subsequently, the Commissioner of Customs, Bombay by a show cause notice dated 26-10-1998 called upon the petitioner to show cause as to why duty amounting to Rs. 42,88,416/- with interest at the rate of 24% p.a. s....
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....al undertaking given by the petitioner under the aforesaid advance licence. The petitioner was under the impression that in the light of the documents furnished, the demand raised by OIO dated 30-10- 2000 would not be enforced. 8. However, by a letter dated 25-7-2003 the customs authorities at Bombay once again called upon the petitioner to pay Rs. 42,88,416/- with penalty of Rs. 4,00,000/- as per the OIO dated 30-10-2000 within a period of 3 weeks, failing which recovery shall be initiated in terms of provisions of Section 142 of the Customs Act, 1962. 9. By a letter dated 13-8-2003, the petitioner once again placed all the facts on record and requested for withdrawal of the notice as the liability under the advance licence has already been discharged by the licensing authorities at New Delhi. 10. However, the Assistant Commissioner of Customs, Confirmed Demand Cell, Mumbai issued a Detention order on 25-9-2003 for recovery of the demand confirmed by the order dated 30-10-2000 and ordered for detaining and selling any goods belonging to the petitioner anywhere in India. Thereupon, the petitioner filed an appeal before CESTAT, New Delhi with an application for codonation of dela....
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....e Customs authorities at New Delhi. (e) Extracts from the DEEC book to show that in fulfilment of the export obligation under the advance licence dated 16-2-1994, the exports have been effected under the supervision of the Customs authorities at New Delhi. (f) Certificates issued by the Central Excise authorities at NOIDA, Delhi to the effect that the petitioner has not taken any benefit under Rule 56A/57A of the Central Excise Rules, 1944 in respect of the goods imported under advance licence dated 16-2-1994. (g) Copy of the redemption certificate dated 14-2-1997 issued by the licensing authorities, New Delhi to show that on fulfilment of the export obligations under advance licence dated 16-2-1994, the bond/legal undertaking given thereunder has been redeemed. In the light of the aforesaid documents which were placed before the Commissioner of Customs, Bombay, Mr. Nankani submitted, that the Commissioner of Customs at Bombay had no jurisdiction to demand duty from the petitioner in respect of the goods imported at New Delhi. Moreover, when the authorities at New Delhi under whose supervision the petitioner had effected the imports/exports under the advance licence dated 16-2-....
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....t available to the petitioner and, therefore, the Commissioner of Customs at Bombay was justified in demanding the duty from the petitioner in respect of the goods cleared under the advance licence dated 16-2-1994. 17. We have carefully considered the rival submissions. 18. As regards the preliminary objection relating to the maintainability of the Writ Petition, it is well established in law that when an appeal is dismissed on the ground that the delay in filing the appeal is not condoned, the doctrine of merger does not apply and the validity of the order impugned in the appeal can be challenged independently, even after the dismissal of the appeal. [See Para 28 of the judgment of the Apex Court in the case of Chandi Prasad v. Jagdish Prasad reported in (2004) 8 SCC 742]. In the present case, the appeal filed by the petitioner has been dismissed by the CESTAT, New Delhi on 12-5-2004 by declining to condone the delay in filing the appeal. Therefore, there being no merger of the order-in-original dated 30-10-2000 in the order of the Tribunal dated 12-5-2004, it is open to the petitioner to challenge the decision of the order-in-original dated 30-10-2000 independent of the challen....