Bharat Enterprises vs Commr. of Cus. (Seaport - Export)

V. Ramasubramanian, J.—The petitioner has come up with the above writ petition challenging an order-in-original passed by the second respondent on 2-8-2010, calling upon the petitioner to pay duty amount of Rs. 5,11,350/- under the Customs Act, 1962, confirmed by the appellate authority. Heard Mr. N. Viswanathan, learned counsel for the petitioner and Mr. K. Mohanamurali, learned Central Government Standing Counsel for the respondent.

This is a very unfortunate case, where the petitioner was granted a licence on 12-9-2002 by the Zonal Joint Director General of Foreign Trade, Chennai for the export of certain items. The petitioner was required to fulfill the export obligations, within a period of eight years. In other words, the petitioner had time up to 11-9-2010 for completing his obligations.

But, unfortunately, a show cause notice was issued within the period of eight years granted under the licence, calling upon the petitioner to show cause as to why duty should not be imposed. Unfortunately, the petitioner did not give a reply, leading to the Original Authority passing an Order-in-Original on 2-8-2010. The petitioner woke up to this order after a gap of about three years and attempted to file an appeal. Since, the Commissioner of Customs (Appeals), did not have the power to condone the delay, he rejected the appeal. The said order was confirmed by CESTAT on 18-9-2013. Thereafter, the petitioner has come up with the present writ petition challenging the Order-in-Original.

Technically, the petitioner could not have maintained the writ petition in view of the fact that he had exhausted all his statutory remedies and those orders passed by the Commissioner of Customs (Appeals) and CESTAT had already attained finality.

But, as I have stated earlier, this is a case where the very initiation of the proceedings, was completely arbitrary and faulty. The licence granted a time limit of eight years for the petitioner to fulfill the export obligations. Even before the expiry of the period of eight years, the Department issued a show cause notice in the year 2008 itself. Ultimately what is to be seen in such cases is as to whether an exporter was within the boundaries of law and had fulfilled his obligations or not. If on facts the petitioner had fulfilled the export obligations as per the licence conditions, the technicality of the petitioner missing the bus at every time, should not be put against him, as substantial justice will fail in such cases. Therefore, the writ petition is allowed and the impugned orders are set aside. No costs. Consequently, the connected miscellaneous petitions are closed.