Madras High Court
M/S.Asianet Satellite Communication ... vs The Customs And Central Excise on 19 February, 2025
Author: Anita Sumanth
Bench: Anita Sumanth
2025:MHC:445
W.A.No.683 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.01.2025
PRONOUNCED ON : 19.02.2025
CORAM:
THE HON'BLE DR.JUSTICE ANITA SUMANTH
AND
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
W.A.No.683 of 2011
and M.P.No.1 of 2011
M/s.Asianet Satellite Communication Limited,
Now Represented by its Senior Vice President (Legal) &
Company Secretary M.V.Sasikanthan,
2A, 2nd Floor, Leela Infopark Technopark,
Kazhakuttom,
Thiruvanathapuram - 685 581,
Kerala.
Formerly represented by its Managing Director,
C.M.Radhakrishnanan Nair,
and previously situated at
3rd Floor, Karimpanal Arcade, East Fort,
Thiruvananathapuram. ... Appellant /
Petitioner
versus
1.The Customs and Central Excise
Settlement Commission,
Narmada Block, Custom House,
No.60, Rajaji Salai,
Chennai - 600 001.
Represented by its Secretary
2.The Director General of Foreign Trade,
Udyog Bhavan, New Delhi.
3.The Commissioner of Central Excise & Customs,
1/22
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W.A.No.683 of 2011
Kochi - 1.
4.The Commissioner of Customs,
Airport, Chennai - 600 027.
5.Commissioner of Customs,
Seaport, Chennai - 600 001.
6.The Deputy Commissioner of Customs,
Tuticorin.
7.The Senior Manager,
Federal Bank Limited,
Statute Branch, Statue,
Thiruvananthapuram - 695 001. ... Respondents /
Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent against
the order dated 23.02.2011 in W.P.No.7931 of 2006(T).
For Appellant : Mr.Hari Radhakrishnan
For Respondents : Mr.Rajnish Pathiyil
Senior Panel Counsel - R1, R3 to R6
No Appearance - R2 & R7
JUDGMENT
[Judgment of the Court was made by G.ARUL MURUGAN, J.]
The appellant had preferred the intra-court appeal challenging the
order dated 23.02.2011 in W.P.No.7931 of 2006(T).
2. The short facts to be noted in the appeal is that M/s.Asianet
Satellite Communication Limited [hereinafter referred to as “ASCL”] the
appellant herein is a service provider company in television network. The
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Export Import Policy [in short “EXIM policy”] for the period 1992-97
provided for an Export Promotion Capital Goods Scheme [in short “EPCG
Scheme”] under Chapter VI A for the service sector. As per the scheme, the
appellant was entitled for either concessional import or total exemption from
payment of duty corresponding to the export obligation.
3. On their application, the Director General of Foreign Trade [in
short “DGFT”] had issued the EPCG licence on 23.12.1993 in favour of the
appellant for import of cable TV equipments valued at Rs.9,79,51,255/- at
the concessional rate of duty. The licence fixed an export obligation on the
appellant at US$ 1,24,18,543 to be achieved within a period of 5 years from
the date of issuance of the licence and towards the security for due
performance of the export obligation, the appellant had furnished a bank
guarantee to the tune of Rs.3,90,55,765/-.
4. Even though as per the EPCG licence, the appellant was
permitted to import equipments to the value of Rs.9,79,51,255/-, the
appellant had actually imported equipments worth only Rs.6,14,39,613/-.
Taking that into account, the DGFT by order dated 28.12.1998 had reduced
the value of licence from Rs.9,79,51,255/- to Rs.6,14,39,613/- and
correspondingly the export obligation also was reduced from US$
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1,24,18,542 to US$ 77,89,491. The period of export obligation was also
extended by one year. As such, though the period of 5 years as per the EPCG
licence expired on 23.12.1998, the export obligation period stood extended
by one year from 23.12.1998 to 23.12.1999.
5. There had been at least two extensions for fulfilling the export
obligations issued by the DGFT and admittedly the appellant company had
not availed the extension by fulfilling the conditions thereunder. As the
appellant failed to fulfil the export obligation under the licence, the Director
of Revenue Intelligence (DRI) seized the capital goods imported by the
appellant under the EPCG Scheme on 29.05.2000. The seizure was
challenged before the Kerala High Court in O.P.No.12798 of 2000. As the
DGFT proceeded to invoke the bank guarantee, the appellant had filed
another petition in O.P. No.15605 of 2000 before the Kerala High Court. The
OP was admitted and by order dated 05.06.2000, the invocation of bank
guarantee was stayed.
6. Pursuant to which, the Customs Department had issued show
cause notices dated 30.06.2000 to the appellant as to why the differential
duty for the goods imported should not be realised. As against the show
cause notices, the appellant had approached the first respondent Settlement
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Commission. In the meantime by order dated 28.11.2000, O.P. No.15605 of
2000 was disposed of by the Kerala High Court recording that since the
issue is pending before the Settlement Commission, no coercive proceedings
need be taken but the bank guarantee should be kept alive.
7. The Settlement Commission by admission order dated
26.12.2000 had directed the appellant to pay the admitted duty liability and
based on which the appellant had paid a sum of Rs.2,69,45,640/- on
27.02.2001. Before the Commission, the appellant had filed the statement of
exports along with Foreign Exchange realised till 31.03.2001 and DGFT had
asked the appellant to send consolidated statement as per Appendix 10C on
03.07.2001 which had also been complied by the appellant by sending a
reply on 22.08.2001.
8. There had been further communications from the appellant to
DGFT which were all relied upon before the Settlement Commission and
ultimately the first respondent Settlement Commission by its final order
dated 13.08.2002 has fixed the duty liability of the appellant at
Rs.4,63,46,499/- and after deducting a sum of Rs.2,69,45,639/- paid in
compliance of the admission order, the balance duty payable was
Rs.1,94,00,860/-. The Commission had also granted immunity from the
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payment of fine, penalty, prosecution and payment of interest and further
directed that the seized capital goods shall be released.
9. The Settlement Commission had come to the conclusion, that
the appellant had achieved export obligation only at 14% based on the
export performance up to 30.06.1998. The Settlement Commission had
rejected the request to consider the earnings up to 22.12.1999 holding that
the extension for export obligation period had been repeatedly rejected by
DGFT.
10. Challenging the orders of the Settlement Commission, the
Customs Department had preferred writ petition before this Court in
W.P.No.29008 of 2003 and the appellant had preferred O.P.No.27493 of
2002 before the Kerala High Court with other consequential reliefs. Based
on the orders of the Hon'ble Supreme Court dated 13.01.2006 in Transfer
Petition (Civil) No.65 of 2005, O.P.No.27493 of 2002 was transferred from
the file of the Kerala High Court to the file of this Court and renumbered as
W.P.No.7931 of 2006(T).
11. Both the writ petitions were heard together and the writ court,
by a common order dated 23.02.2011, had dismissed both the writ petitions
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mainly on the ground that the Commission had arrived at the conclusion by
considering all the available materials and when the request for extension of
export obligation had been rejected by the DGFT, the Commission had
rightly not gone beyond the same and in such circumstances no mandamus
could be issued contrary to the provisions of the statute. Assailing the order
in the writ petition, the appellant alone had preferred the above writ appeal.
12. Mr.Hari Radhakrishnan, learned counsel for the appellant
admitting that the export obligation as per the EPCG licence could not be
complied with fully, mainly contended that though originally the licence was
granted only for a period of 5 years which had expired on 23.12.1998,
however while reducing the value of import licence and the export
obligation, the licence has been extended for a period of one year from
23.12.1998 to 22.12.1999 and the Commission as well as the learned single
Judge had not considered the export realised for the extended period by
mistakenly observing that the request for extension had been repeatedly
rejected, which would be applicable only for the period beyond 22.12.1999.
13. He further contended that when admittedly the appellant was
held to be entitled to render the service either in India or abroad as per the
EPCG licence in question based on the EXIM policy, the records submitted
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by the appellant to establish the payment of customers through the NRI
accounts at least through 3 banks before the Commission along with the
bank certificates and auditor certificate had not been taken note of.
14. The learned counsel further relying on the documents including
the communications submitted by them to the DGFT submitted that though
14% of the export obligation had been admitted, they are claiming for
exemption of duty only up to 30% i.e., for the export obligation achieved up
to the extended period till 22.12.1999, so that the corresponding liability
could get reduced. He made it clear that they are not making claim beyond
this extended period and sought for indulgence of this Court.
15. Per contra, Mr.Rajnish Pathiyil, learned Senior Panel Counsel
for the respondents 1, 3 to 6 contended that admittedly when the appellant
had not fulfilled the export obligation as per the EPCG licence, they are not
entitled for any concessional duty and they are liable to pay duty for the
entire imported goods. However since already the exports realised to the
extent of 14% had been taken note of and benefit has been granted, the
appellant is bound to pay the differential duty as directed by the
Commission. He further contended that when DGFT had granted
opportunities for extending the period, the appellant had not come forward
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to opt the same and when the extension of the licence stood rejected, the
Commission and the writ court had rightly taken note of the same and the
findings arrived at are perfectly justified and needs no interference and
sought for dismissal of the writ appeal.
16. Heard the rival submissions and perused the materials available
on record.
17. The facts are not in dispute that the appellant who is a service
provider in TV networks had been issued with EPCG licence by the DGFT
based on the EXIM policy 1992-97. As per the EPCG licence, the appellant
was entitled to import capital goods valued at Rs.9,79,51,255/- for
concessional duty. The appellant was imposed with an export obligation of
US$ 1,24,18,543 to be achieved within a period of 5 years from the date of
issuance of the licence i.e. On 23.12.1993.
18. It is also not in dispute that since the appellant only imported
goods to a value of Rs.6,14,39,613/-, the DGFT by proceedings dated
28.12.1998 had reduced the value of licence from Rs.9,79,51,255/- to
Rs.6,14,39,613/- and also the corresponding export obligation was reduced
from US$ 1,24,18,542 to US$ 77,89,491. While reducing the value of
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licence, the period for achieving the export obligation was also extended for
a further period of one year from 23.12.1998 to 22.12.1999.
19. The relevant portion of the aforesaid order is extracted
hereunder:-
“R.No.18/723/AM'94/KPCG-II/172 Dated 28.12.98
To
M/s.Asianet Satellite,
Communications Ltd.,
Centre Plaza, Azhuthacaud,
Trivandrum - 685 014 (Kerala).
Sub: Reduction in the value of licence No.P/CG/2131490/
Dated 23.12.98
Gentleman,
With reference to your letter dated 11.07.98 on the subject
mentioned above, I am directed to convey the approval of KPCG
Committee for the following amendments deemed to have been made
against the subject licence:-
i) Reduction in the value of licence from
Rs.9,79,51,255/- to Rs.6,14,39,613/-
ii) Reduction in the export obligation
US$ 1,24,18,542 to US$ 77,89,491.00
2. The import licence furnished by you is returned herewith unamended as
the same has since expired. You are therefore advised to keep this letter
always attached with the import licence and may be furnished at the time
of redumption of RG/LUT.
3. The KPCG Committee at its meeting held on 14.12.98, also decided to
extend thee export obligation period by one year from the date of expiry of
original export obligation period (i.e. from 23.12.98 to 22.12.99).”
20. Though the export obligation was reduced and also the time
period for achieving the obligation was extended till 22.12.1999, still
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admittedly the appellant was not able to fulfil the export obligation as
contemplated under the EPCG licence. In view of the non-fulfillment of the
export obligation, the DRI had seized the imported goods, which resulted in
the appellant initiating proceedings before the Kerala High Court. Further as
the DGFT sought to invoke the bank guarantee, the appellant had also
initiated another writ petition to resist the same.
21. In view of those proceedings, the DGFT had issued show cause
notices to the appellant for realising the differential duty towards the non
fulfilment of export obligation. Challenging the show cause notices, the
appellant had filed application before the first respondent Settlement
Commission under Section 127B of the Customs Act, 1962 [hereinafter
referred to as “the Act”]. In view of the issues being raised before the
Settlement Commission, the proceedings initiated by the appellant before the
Kerala High Court came to be closed, by only directing the Department not
to take coercive proceedings and also the appellant to keep the bank
guarantee alive.
22. Before the Settlement Commission, the appellant had filed
documents to establish that they had achieved export obligations up to 30%
within the extended period of licence i.e., till 22.12.1999. The appellant had
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also sent communications to the DGFT by requesting to provide the
certificate in respect of the export obligations fulfilled by them. The DGFT
by their communication dated 03.07.2001 had asked the appellant to submit
a consolidated statement as per Appendix 10C of the correct Hand Book of
Procedures along with the certificates in original from the concerned banks
for the entire exports effected from 01.04.1993 to 31.03.2001, in order to
intimate the export obligation fulfillment to the Commission. The appellant
had also replied to the same enclosing the necessary documents as requested.
23. The Commission by their communication dated 19.07.2001 had
intimated the appellant stating that even though the appellant claimed to
have achieved 50% of the export obligation, the same was verified with the
DGFT authorities and by letter dated 15.06.2001 they have communicated
that the export obligation fulfilment upto 30.06.1998 is about US$ 10,89,580
i.e. 14% approximately.
24. The above said letter is extracted hereunder:-
“C.No.VIII/10/24/2001 SC 19.07.2001
To
M/s.Asianet Satellite Communications (p) Ltd.
III Floor, Centre Plaza,
Vazhuthacaud,
Thiruvananthapuram-695 014. (By Speed Post)
Sirs,
Sub:- Customs - Settlement application filed under Section 127 B
of Customs Act, 1962-certain information called for Reg.
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Please refer to the settlement applications filed before this bench
and the admission order vide C.No. VIII/10/3-6/2000 SC Dt.26.12.2000
and order C.No. VIII/10/3-6/2000 SC dated 19.7.2001 of Additional
Bench for further investigation of the case by the Commissioner
(Investigation).
It has been stated in the said applications that 50% of export
obligation has been achieved.
This aspect was verified with DGFT authorities and the DGFT
vide their letter dt. 15.6.2001 had stated that the Export obligation
fulfillment is about US $ 1089580 ie., 14% (approximately) as per the
export statement available with them (upto 30.6.98)
You are requested to furnish the export invoices, bank realisation
certificates invoice wise and any other documentary proof for the
fulfillment of export obligation to substantiate your claim in respect of
imports through all the four ports of import.
The information may be furnished with in 10 days so as to expedite
the settlement of the case.”
25. Pursuant to the several communications sent by the appellant to
the DGFT, by proceedings dated 26.04.2002 DGFT had called for the details
of earnings from the NRE accounts towards NRI subscriptions for 10 years
in the cable network in Kerala. DGFT had further stated that the details
furnished by the appellant in respect of some earnings do not specifically
indicate whether those are from NRE accounts and as such the appellant was
requested to furnish a break up of foreign exchange earnings category-wise
as certified by the Chartered Accountant.
26. To be noted, earlier the Commission by their admission order
dated 05.03.2001 had directed the appellant to pay a sum of Rs.2,69,45,640/-
being the admitted amount towards differential duty which the appellant had
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duly complied with. Further when the appellant had taken out two
Miscellaneous Petitions to implead the DGFT as a party, the Commission by
its order dated 30.04.2002 had recorded that it was premature at that stage to
implead the DGFT and had directed the appellant to approach the DGFT to
obtain a certificate or clarification to certify the additional quantity of
exports which are being claimed up to December 1999. The Commission
had also directed the jurisdictional Commissioner of Customs, Chennai in
respect of the letter dated 24.08.2000 certifying the fulfilment of 14% of the
export obligation.
27. The appellant by their representation dated 13.05.2002 had
furnished details to the DGFT to the effect that US$ 37,18,916 had been
received from the NRI subscription through NRE bank accounts along with
the auditor certificate. In spite of further representations, as nothing was
forthcoming, the appellant had filed 3 bank certificates from Federal Bank,
Indian Overseas Bank and State Bank of Travancore along with Appendix-
10C duly signed by the Chartered Accountant for the export earnings upto
22.12.1999 before the Commission. Since no certificate was received from
the DGFT, the Commission by their final order dated 13.08.2002 held that
the payment in freely convertible currency for service rendered in India or
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abroad is covered by the EPCG licence based on the erstwhile para 46C of
the EXIM policy 1992-97.
28. The Commission in para 10.2.4 of their order, by placing
reliance on the communication of the DGFT dated 05.10.2000, held that the
export obligation upto 14% has been achieved by the appellant for the period
upto 30.06.1998 and request made by the appellant to consider the earnings
up to 22.12.1999 was rejected on the ground that the request for extension
had already been rejected. The same is as extracted under:-
“10.2.4. The applicant has stated that the DGFT was still
considering their request. However, the matter cannot be kept pending for
an unduly long time defeating the very objective of the Settlement
mechanism. While the applicant has not submitted any such certificate,
DGFT in their letter 20/316/94/EPCG111/1246, dt. 5.10.2000 to DC,
Tuticorin has stated that the applicant has achieved 14% (approximately)
of the export. This has been reiterated in their letter
no.20/316/94/EPCG111/565, dt.15.6.2001 to a specific query from this
office. Even though there are letters from DGFT entertaining doubts on
whether the activities undertaken by the applicant amounted to exports;
this letter dt. 15.6.2001, or the earlier one dt. 5.10.2000 have not been
withdrawn by DGFT. The Bench is therefore, constrained to hold the
export obligation achievement as 14% only. Even though these letters
have computed the export performance up to 30.6.1998 only, as seen from
the annexure to Form 10C submitted by the applicant to DGFT in their
letter dt. 28.8.2001, the subsequent earnings are in Indian Rupees only, as
seen from the break-up figures given by the Advocate in his letter dated
18th July, 2002 and not freely convertible currency. Though the advocate
has requested to take the earnings subsequent to 22.12.1999 also when
export obligation period expired as they had kept the bank guarantee
alive, as required under PN No.3 (RE-01/1997-2002, dt. 31.03.2001), this
10.4 Question (iv):
Interest: Except, Commissioner of Customs & Central Excise, Cochin,
the other three respondents have vehemently urged that in terms of
EXIM Policy, LUT/Bond and the Hand book of Procedures, the
applicant has to bear the interest for the delayed payment of duty. In
addition, at the time of final hearing on 5-7-2002, the representative of
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the Commissioner of Customs, Sea Port, Chennai submitted that by
virtue of substitution of Para (iv) in Notification No.160/92-Cus. Dated
20-4-92 by clause 109 (1) read with 8th Schedule of the Finance Bill,
2001, the provisions therein have retrospective effect i.e., from 20-4-92
and since the applicant had failed to avail the extension for export
under PN 5/99 dated 6-4-99 issued by DGFT, the applicant has to pay
interest at the rate of 24% in terms of para 8 of PN 3/(RE 01)/1997-
2002 dated 31-3-2001 issued by DGFT.”
29. From the above, it is clear that the Commission had only taken
note of the communication of the DGFT dated 05.10.2000 in coming to the
conclusion that the appellant had achieved 14% of export obligation upto
30.06.1998. Admittedly, when the period of licence has been extended upto
22.12.1999, the export earnings achieved upto this period had not been taken
note of.
30. When the DGFT had particularly sought for the details of
export earnings upto the period 22.12.1999 along with the bank certificates
and Appendix 10C attested by the Chartered Accountant and the same has
also been furnished by the appellant with all particulars, there had been no
further development and when these details were also filed before the
Commission, the same had not been considered by the Commission only on
the ground that the request for extension made by the appellant had been
rejected. Before this Court, the appellant had filed a consolidated statement
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of exports and the receipts in foreign currency for the period from
01.04.1993 to 20.12.1999.
31. On perusal it could be seen that it is only a self serving
document prepared by the appellant and we are not inclined to rely on this
self serving document to appreciate the contentions made by the appellant.
However, copies of 3 Bank certificates all dated 25.09.2000 issued by
Federal Bank Limited, Indian Overseas Bank and State Bank of Travancore,
pertaining to the remittances received for the period upto 22.12.1999 has
been filed. The certificate issued by the State Bank of Travancore precisely
states that the remittances had been received from various NRE accounts
into the account of the appellant. But the certificate of Indian Overseas Bank
states that they have collected and credited Rs.1,63,84,165/- from various
NRE customers for the period from 03.06.1999 to 20.12.1999 which is
equivalent to US$ 3,56,170. The certificate issued by Federal Bank also
certifies that for the period upto 20.12.1999 they have credited an amount of
Rs.4,21,550/- which is approximately equivalent to US$ 10,036.90.
32. From the above certificates, the information is not clear and
specific as to whether the remittances have been made from NRE accounts
to the appellant account to consider it as export revenue, as one certificate
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simply refers that it has been received from NRE customers. However the
Appendix 10C certified by the Chartered Account in respect of the export
obligation achieved till 20.12.1999 has also been filed.
33. When admittedly the EPCG licence has been extended for the
period upto 20.12.1999 and also the appellant had received remittances from
the NRE customers for cable subscriptions and when the export achieved
upto 1998 had alone been taken into account, necessarily the remittances
received by the appellant towards export obligation which according to the
appellant has been achieved 30% has to be considered, as their obligation
towards the payment of duty will proportionately reduce.
34. Though normally we would be reluctant to remand the matter at
this considerable length of time, still, since from the certificates issued by
Banks filed as indicated above, at least in one of the certificates issued by
the Bank it is clearly stated that the remittances had been made by the NRE
customers in to the appellant account, it would only be appropriate in the
interest of justice to remand the matter back to the first respondent
Settlement Commission to enable the appellant to file the bank statements
which would establish the remittances received from the NRE accounts to
the appellant account for the cable subscription towards realisation of the
export obligation.
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35. This would require filing of the bank statements alone which
has to be looked into and verified to arrive at the conclusion regarding the
actual remittance received by the appellant in these 3 banks as certified by
the Bank and the Appendix 10C. As both the Commission as well as the writ
court had not considered this aspect and had simply concluded the issue
holding that there has not been any extension after 1998 which is factually
incorrect, the portion of the order insofar as fixing the export obligation to
have been achieved at 14% alone is set aside and the matter is remanded
back to the file of the first respondent Settlement Commission only for the
limited purpose of ascertaining the actual export obligation achieved by the
appellant by the remittances received by them from the NRE accounts
towards cable subscription charges in the 3 banks mentioned supra.
36. Based on the ultimate decision to be arrived at by the
Commission, fixing the export obligation achieved, the proportionate duty
for the unfulfilled export obligation shall be paid by the appellant as directed
by the Commission, failing which the DGFT will be entitled to realise the
bank guarantee. The bank guarantee shall be kept alive till the proceedings
are concluded before the first respondent Settlement Commission and
ultimately acted upon. In view of the pendency of the issues for a
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considerable length of time, the entire exercise shall be completed within a
period of 3 months from the date of receipt of copy of this order.
37. With these directions, the Writ Appeal stands partly allowed.
There shall be no order as to costs. Consequently, connected Miscellaneous
Petition is closed.
[A.S.M.J.,] [G.A.M.J.,]
19.02.2025
Speaking order
Index : Yes
Neutral Citation : Yes
sri
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To
1.The Customs and Central Excise Settlement Commission,
Narmada Block, Custom House,
No.60, Rajaji Salai,
Chennai - 600 001.
Represented by its Secretary
2.The Director General of Foreign Trade,
Udyog Bhavan, New Delhi.
3.The Commissioner of Central Excise & Customs,
Kochi - 1.
4.The Commissioner of Customs,
Airport, Chennai - 600 027.
5.Commissioner of Customs,
Seaport, Chennai - 600 001.
6.The Deputy Commissioner of Customs,
Tuticorin.
7.The Senior Manager,
Federal Bank Limited,
Statute Branch, Statue,
Thiruvananthapuram - 695 001.
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Dr. ANITA SUMANTH, J.
AND
G.ARUL MURUGAN, J.
sri
Pre-Delivery Judgment made in
19.02.2025
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