Delhi High Court
M/S S.S. Automotive Pvt. Ltd. vs Additional Commissioner, ... on 28 April, 2015
Author: Rajiv Shakdher
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4202/2015
M/S S.S. AUTOMOTIVE PVT. LTD. ..... Petitioner
Through: Mr V.V. Gautam, Adv.
versus
ADDITIONAL COMMISSIONER, CUSTOM
(EXPORT SHED), ICD, TKD ..... Respondent
Through: Mr Kamal Nijhawan & Mr Sumit Gaur,
Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 28.04.2015
CM No. 7606/2015 (Exemption)
1. Allowed subject to just exceptions.
WP(C) 4202/2015
2. There are two grievances of the petitioner articulated in the present
petition. First, that the bank guarantee in the sum of Rs. 1 crore furnished as
a condition for provisional release of goods has not been returned, though
export proceeds have been received and the duty draw-back claimed by the
petitioner, along with interest, has been returned as directed by the
respondents.
2.1 Second, that the show cause notice dated 05.11.2013, issued to the
petitioner, alleging over-valuation of the goods exported, has not been
adjudicated upon to date, even though an interim reply to the said show
cause notice was filed, as far back as on 08.08.2014.
3. It may be noted that the petitioner claims that it is in the business of
export of various horticulture and agriculture machinery parts, and that, this
business is being carried out since 2002.
3.1 The petitioner, on obtaining an order, sought to export the machinery
parts relating to horticulture and agriculture in pursuance of a purchase order
dated 08.08.2012. It is the petitioner's case that the goods sought to be
exported, were examined by the officers of the customs, and thereafter were
having been found in order, an export order was issued in its favour by the
competent officer. This exercise, according to the petitioner, was carried out
between 3.04.2013 and 04.04.2013.
3.2 Apparently, the goods were, once again, examined on 15.04.2013.
The petitioner was also directed to produce documents pertaining to the
goods in issue including the documents pertaining to cost of production,
purchase of invoices etc. The petitioner avers that some documents were
submitted under a cover of the letter dated 30.04.2013 as well.
3.3 Initially, the respondent, it appears, permitted provisional release of
the goods sought to be exported vide communication dated 29.05.2013 on
fulfilment of conditions contained therein, which inter alia, required the
petitioner to execute a bond in the sum of Rs. 11,08,87,611/-, along with a
bank guarantee in the sum of Rs. 1 crore.
3.4 The petitioner says that the said conditions were fulfilled and
consequently goods were allowed to be exported. It is the petitioner's case
that proceeds in the sum of USD 20,55,310.23/- have been received. Bank
realization certificates dated 30.08.2013 to 01.10.2013 are relied upon for
this purpose.
3.5 It appears the petitioner received duty draw-bank, on account of its
export, in the sum of Rs. 18,41,469/-. Evidently, since the respondent vide
order dated 24.06.2013 required the petitioner to deposit the duty draw-back
amount, the said sum, along with interest, was deposited by the petitioner in
the designated account on 06.07.2013.
3.6 Evidently, a search was conducted on the petitioner's office premises
on 08.07.2013. It is the case of the petitioner, no incriminating documents
were found. It is also admitted that the department requisitioned a report of
a chartered engineer, namely, one Mr Naveen Arora, dated 17.04.2013,
which details out the valuation of the goods exported. The respondent has
also received quotation from, one, M/s Prime Spares Co.. This quotation is
dated 18.04.2013.
3.7 The statement of the director of the petitioner, under Section 108 of
the Customs Act, 1962 has also been recorded. This statement was
recorded, evidently, on 18.07.2013.
4. Consequent thereto a show cause notice dated 05.11.2013 was issued
to the petitioner, to which, as indicated, a reply dated 08.08.2014 has been
filed by the petitioner. It is in these circumstances, the captioned writ
petition has been filed.
5. Having regard to the averments made in the petition, it is clear that the
respondent needs to quickly close the proceedings and adjudicate upon the
show cause notice dated 05.11.2013. The petitioner's contention that the
bank guarantee has served its purpose, has some merit.
6. In these circumstances, the respondent is directed to adjudicate upon
the show cause notice as expeditiously as possible, though not later than four
weeks from today. While doing so, the concerned authority will also take a
decision on the plea with regard to release of the bank guarantee in issue.
7. Learned counsel for the petitioner says that an interim reply was filed
to the show cause notice dated 05.11.2013, as relied upon documents were
not furnished by the respondent. Accordingly, the respondent will furnish
all documents to the petitioner if, a request is made in that behalf. After
documents are supplied, if filing of an additional reply is necessitated, an
opportunity for that purpose will be given to the petitioner. The petitioner
will be heard before an order is passed qua the show cause notice dated
05.11.2013.
8. The writ petition is, accordingly, disposed of with the aforesaid
directions.
9. Dasti under the signatures of the Court Master.
RAJIV SHAKDHER, J
APRIL 28, 2015
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