{"id":217144,"date":"2005-10-14T00:00:00","date_gmt":"2005-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vimal-nath-an-indian-inhabitant-vs-union-of-india-uoi-on-14-october-2005"},"modified":"2017-08-17T03:04:14","modified_gmt":"2017-08-16T21:34:14","slug":"vimal-nath-an-indian-inhabitant-vs-union-of-india-uoi-on-14-october-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vimal-nath-an-indian-inhabitant-vs-union-of-india-uoi-on-14-october-2005","title":{"rendered":"Vimal Nath, An Indian Inhabitant … vs Union Of India (Uoi), … on 14 October, 2005"},"content":{"rendered":"
Bombay High Court<\/div>\n
Vimal Nath, An Indian Inhabitant … vs Union Of India (Uoi), … on 14 October, 2005<\/div>\n
Equivalent citations: 2005 (6) BomCR 526, (2005) 107 BOMLR 953, 2006 (1) MhLj 769<\/div>\n
Author: J Devadhar<\/div>\n
Bench: V Daga, J Devadhar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
J.P. Devadhar, J.<\/p>\n
Page 937<\/p>\n
1. A short but interesting question of law raised in this petition is, whether, the Commissioner of  Customs, Bombay has jurisdiction \/ authority to demand  customs duty from the petitioner in respect of goods  which are not at all imported by the petitioner at the  Bombay port ?\n<\/p>\n
2. The facts relevant for this petition are that  on 16\/2\/1994 an advance licence was issued by the  licensing authorities at Delhi permitting the  petitioner to import duty free raw materials amounting  to Rs.22,82,803\/- with corresponding export obligation  as more particularly set out in the licence. The said  licence was valid for 12 months. The port of  registration mentioned in the licence for the purpose  of imports was the port at Bombay. The said licence  was duly registered at the Customs House at Bombay.\n<\/p>\n
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 along  with 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.\n<\/p>\n
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. should not be demanded and recovered from  the petitioner under section 28 of the Customs Act,  1962 in respect of the goods imported under the advance  licence dated 16\/2\/1994 and cleared by availing the  benefit of Notification No.203\/92 Cus. dated 19\/5\/92  as more particularly set out in the annexure to the  show cause notice. The annexure to the said show cause  notice dated 26\/10\/98 was however, totally blank  regarding the date of the bill of entry, description of goods, quantity of goods and even the declared value of  the  goods  alleged  to  have  been  imported  by  the petitioner.   It  was  stated  that  the  demand  for Rs.42,88,416\/- has  been  raised  by  treating  the estimated bond amount as duty. Thus, the demand raised  in the show cause notice was only an estimated demand  and was not based on the goods actually imported by the  petitioner.\n<\/p>\n
5. The petitioner replied to the said show cause  notice vide letters dated 25\/11\/1998 and 19\/11\/1999.  It was stated in the said letters that the port of  registration mentioned in the licence was amended by  the licensing authorities at Delhi and that the  petitioner has effected imports and exports under the  said advance licence by air from New Delhi. It was  Page 938 also stated that on fulfilment of the export  obligation, the licensing authorities at New Delhi by  their letter dated 14\/2\/1997 have discharged the bond \/  legal undertaking given by the petitioner.  Accordingly, the petitioner requested that the show  cause notice dated 26\/10\/1998 be dropped.\n<\/p>\n
6. Rejecting the contention of the petitioner,  the Commissioner of Customs, Mumbai by his order-in- original (OIO) dated 30th October, 2000, confirmed the  demand of duty for Rs.42,88,416\/- with interest at the  rate of 24% from the date of clearance of the goods  till payment and also levied penalty of Rs.4,00,000\/-.\n<\/p>\n
7. On receipt of the said order, Shri.Ashok Arora  a representative of the petitioner personally met the  Commissioner of Customs at Mumbai some time in January,  2001 and explained the facts. It is the case of the  petitioner, that the learned Commissioner agreed to  close the file on submission of the relevant papers.  Accordingly, the petitioner submitted all the requisite  documents to show that the imports \/ exports under the  advance licence has been effected from Delhi and that  on fulfilment of the export obligation, the licensing  authorities at New Delhi have discharged the bond \/  legal 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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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 condonation of delay to  challenge the order in original dated 30\/10\/2000. The  Tribunal by its order dated 12\/5\/2004 declined to  condone the delay and consequently dismissed the appeal  filed by the petitioner. Hence this petition is filed  by the petitioner to challenge the order of the CESTAT,  New Delhi dated 12\/5\/2004 as also the order in original dated 30\/10\/2000 and the detention order dated  25\/9\/2003 issued by the customs authorities at Bombay.\n<\/p>\n
11. Mr. Nankani, learned counsel for the petitioner  submitted that although the order of the Tribunal in  declining to condone the delay is totally perverse, in  view of the objection raised by the revenue regarding  the challenge to the said order in this Writ Petition,  he would restrict his arguments to challenge Page 939 the non  est \/ without jurisdiction order of the Commissioner of  Customs, Bombay dated 30\/10\/2000 and the detention  order dated 25\/9\/2003 issued to implement the OIO dated  30\/10\/2000.\n<\/p>\n
12. Relying upon the decision of the Apex Court in  the case of State of Orissa v. Brundaban Sharma and Anr. reported in 1995 Supp (3) Supreme Court Cases 249, Mr. Nankani submitted that where an order passed is  a non est or illegal order, its validity can be  challenged at any stage of the proceedings. In the  present case, detention order dated 25\/9\/2003 is issued  to enforce the demand raised by the non est \/ illegal  order passed by the Commissioner of Customs, Mumbai on  30\/10\/2000 and, therefore, the petitioner is entitled  to challenge the same by filing a writ in this Court.\n<\/p>\n
13. In support of his contention that the order  passed by the Commissioner of Customs, Bombay is  without jurisdiction, Mr. Nankani referred to the  following documents, namely;\n<\/p>\n
(a)  Amendment made to the value based advance  licence No.2322949 dated 16\/2\/1994 by the  licensing authorities at New Delhi by  substituting the port of registration from  Bombay to New Delhi.\n<\/p>\n
(b)  Copies of Bills of entry evidencing import  or raw materials under the aforesaid  advance licence dated 16\/2\/1994 at the  cargo terminal, IGI Airport, New Delhi.\n<\/p>\n
(c)  Copies of 27 shipping bills to show that  the export has been effected from the cargo  terminal IGI Airport, New Delhi in  fulfilment of export obligations under the  said advance licence dated 16\/2\/1994.\n<\/p>\n
(d)  Extracts from the DEEC book to show that  the raw materials under the advance licence dated 16\/2\/1994 have been imported under  the supervision of the customs authorities  at New Delhi.\n<\/p>\n
(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.\n<\/p>\n
(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.\n<\/p>\n
(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.\n<\/p>\n
In the light of the aforesaid documents which were  placed before the Commissioner of Customs, Bombay,  Mr. Nankani submitted, that the Page 940 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\/1994 are satisfied that the petitioner has  fulfilled the export obligations and have discharged  the bond \/ legal undertaking, the Commissioner of  Customs at Bombay had no jurisdiction to demand customs  duty from the petitioner. Mr. Nankani further submitted  that merely because the said licence dated 16\/2\/1994  was originally registered at Bombay, it was not open to  the Commissioner of Customs at Bombay to demand customs  duty when in fact no imports were made at Bombay.  Accordingly, Mr. Nankani submitted that order in  original passed by the Commissioner of Customs dated  30\/10\/2000 being without jurisdiction, the detention  order passed on 25\/9\/2003 to enforce the demand  confirmed in the order in original dated 30\/10\/2000 is  also liable to be quashed and set aside.\n<\/p>\n
14. Mr. Kantharia, learned counsel appearing on  behalf of the respondents on the other hand, submitted  that against the order of CESTAT, New Delhi, the  petitioner had a remedy of filing a statutory appeal  before the Delhi High Court and, therefore, this Court  should not entertain the petition under Article 226 of  the Constitution of India.\n<\/p>\n
15. As regards the merits of the case, the learned  counsel for the revenue fairly stated that there is no  evidence on record to show that the petitioner had  imported the raw materials under the advance licence  dated 16\/2\/1994 at the port at Bombay. He submitted  that the documents furnished by the petitioner to show  that the imports \/ exports under the advance licence  dated 16\/2\/1994 have been effected from the cargo  terminal IGI Airport, New Delhi and that the obligation  under the said licence have been discharged could not  be verified, because the customs authorities at New  Delhi are not co-operating with the customs authorities  at Bombay in verifying the documents furnished by the  petitioner.\n<\/p>\n
16. However, referring to para 4.19.2 of Handbook of Procedures 1992-97, counsel for the revenue  vehemently argued that once the advance is registered  at Bombay, imports under the said licence could be made  only through the port at Bombay and it was not open to  the licensing authorities at New Delhi to change the  port of registration from Bombay to New Delhi. He  submitted that in the absence of any documents to show  that no input stage credit has been availed under Rule  56A \/ 57A of the Central Excise Rules, the benefit of  Exemption Notification No.203\/92 dated 19\/5\/1992 was  not 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.\n<\/p>\n
17. We have carefully considered the rival  submissions.\n<\/p>\n
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. Jagdhish Prasad<\/a> reported in (2004) 8 S.C.C. 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 Page 941 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 challenge to the order of the  Tribunal dated 12\/5\/2004. Therefore, the writ filed in  this Court to challenge the order in original dated  30\/10\/2000 passed by the Commissioner of Customs,  Bombay and the detention order dated 25\/9\/2003 issued  to enforce the order dated 30\/10\/2000 would be  maintainable.\n<\/p>\n
19. Now, turning to the merits of the case, it is an  admitted  fact  that the goods  under  the  advance licence  dated  16\/2\/1994 were not imported at  Bombay. Inspite  of  the fact that the goods under the  licence dated 16\/2\/1994 have not been imported and cleared at  Bombay, the Commissioner of Customs, Air Cargo Complex, Bombay has confirmed the demand for duty solely on the  ground that the advance licence dated 16\/2\/1994 was  registered at Bombay. The Commissioner of Customs,  Bombay has jurisdiction over the imports and exports  effected through the port at Bombay. Therefore, the  Commissioner of Customs, Bombay can demand customs duty  only if the goods are imported through the port at  Bombay. In the present case, as the petitioner has not  imported the said goods through the port at Bombay, the  Commissioner of Customs, Bombay could not have demanded  duty from the petitioner merely because the licence was  registered at Bombay. As the petitioner had not  imported the goods through the Bombay port, there was  no question of furnishing documents relating to the non  utilisation of the input stage credit. Therefore, the  demand confirmed by the Commissioner of Customs, Bombay  against the petitioner on the presumption that because  the licence is registered at Bombay, the goods must  have been cleared from Bombay, cannot be sustained.  Therefore, such a demand which is wholly based on  conjecture and surmises has no legal sanctity and the  same is liable to be quashed and set aside.\n<\/p>\n
20. The contention of the revenue that the  licensing authorities at New Delhi had no jurisdiction to change the port of registration from Bombay to Delhi  is without any merit because, firstly, interpretation  of the licensing provisions is left to the licensing  authorities and it is not open to the customs  authorities to question the same. Secondly, even if  the advance licence dated 16\/2\/1994 was registered at  Bombay, in the absence of any import of goods through  the Bombay port, the Commissioner of Customs, Bombay  could not have confirmed the demand against the  petitioner. Even the show cause notice issued to the  petitioner did not contain any particulars regarding  the alleged duty free clearance of goods under the  advance licence dated 16\/2\/1994 through the port at  Bombay and, therefore, the demand raised against the  petitioner cannot be sustained.\n<\/p>\n
21.  Moreover,  in the present case the  petitioner had  furnished  documentary evidence to establish  that the  port of registration mentioned in the licence  has been  changed  from  Bombay to Delhi by  the  licensing authorities at New Delhi. The petitioner has also  furnished documentary evidence to show that as per the  amended licence, the petitioner had effected imports  and exports through the customs port situated at the  IGI Airport, New Delhi and that on fulfilment of the export obligation, the licensing authorities at New  Delhi have redeemed the bond \/ legal undertaking given  by the petitioner. Page 942 The petitioner has also produced  the certificates from the excise authorities to show  that the input stage credit under Rule 56A \/ 57A has  not been availed by the petitioner. The Commissioner  of Customs, Bombay does not doubt the veracity of any  of the documents furnished by the petitioner. The  grievance of the Commissioner of Customs, Mumbai is  that the excise \/ customs authorities situated at Delhi  are not co-operating in the matter in verifying the  documents submitted by the petitioner. If the  Commissioner of Customs is unable to verify the  documents,  it  cannot be presumed that  the  documents furnished  by  the  petitioner  are  not  genuine. Therefore,  in  the  absence of  any  imports  effected through the port at Bombay and in the absence of reason  to doubt the veracity of the documents furnished by the  petitioner, the Commissioner of Customs, Bombay was not  justified in demanding customs duty from the  petitioner. Therefore, the demand raised against the  petitioner as well as the action taken to enforce the  demand are illegal and contrary to law.\n<\/p>\n
22. For all the aforesaid reasons, the order in original dated 30\/10\/2000 as well as the Detention  order date 25\/9\/2003 issued for enforcement of the  demand raised under the Order-in-Original dated  30\/10\/2000 are quashed and set aside and the rule is  made absolute in the above terms with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Vimal Nath, An Indian Inhabitant … vs Union Of India (Uoi), … on 14 October, 2005 Equivalent citations: 2005 (6) BomCR 526, (2005) 107 BOMLR 953, 2006 (1) MhLj 769 Author: J Devadhar Bench: V Daga, J Devadhar JUDGMENT J.P. Devadhar, J. Page 937 1. A short but interesting question of law […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-217144","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVimal Nath, An Indian Inhabitant ... vs Union Of India (Uoi), ... on 14 October, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vimal-nath-an-indian-inhabitant-vs-union-of-india-uoi-on-14-october-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vimal Nath, An Indian Inhabitant ... vs Union Of India (Uoi), ... on 14 October, 2005 - 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