M/S. RAJESH EXPORTS LIMITED vs DIRECTOR (TRU-I) MINISTRY OF FINANCE

This writ petition has been filed by the

petitioner-M/s.Rajesh Exports Ltd., aggrieved by the

communication Annexure-A dated 10.10.2017 issued

by the Respondent-Director (TRU-I), Ministry of

Finance, Department of Revenue, North Block, New

Delhi, under the provisions of the Customs Act, 1962.

While noticing in the said communication, the

Respondent-Director (TRU-I) has clearly noted the

observations of the Hon''ble Supreme Court in the order

dated 21.11.2016 and this Court''s order dated

17.07.2017 and has directed that the Adjudicating

Authority should decide the show-cause notice issued to

the present petitioner in the matter with regard to the

import of Gold Dore Bars by him from Australia.

The learned counsel for the petitioner

Mr.K.Chandrashekara submits that the Respondent

was expected to issue certain clarifications as prayed for

in the writ petition.

The prayers made in the writ petition are

quoted below for ready reference:-

"(a) Issue a Writ of Certiorari and quash the Order F.No.354/133/2014-TRU (Part-I) dated 10.10.2017 (Annexure "A") as void.

(b) Issue a Writ of Mandamus for direction to the Respondent to modify the Clarification dated 15.4.2013 (Annexure "B") to be in consonance with the Judgment of the Hon''ble High Court of Karnataka as follows:

(i) The Airway way bill confirming the dispatch of goods from Australia and the Certificate of Origin issued by The Perth Mint declaring that the goods were of Australian Origin satisfy Condition No.34(a) of the Notification No.12/2012 (customs) if the weight of each of the gold dore bar is above 5 kilos.

(ii) The list of goods issued by The Perth Mint declaring that the list of goods was in accordance with the packing list issued by the

Australian Mining company by whom they were produced satisfies Condition No.34(b) of the Notification No.12/2012 (customs).

(iii) the Assay certificate issued by The Perth Mint certifying the content of the precious metals in the gold dore bars and declaring that The Perth Mint was appointed by the Australian Mining company by shom the gold dore bars were produced to conduct assay on the bars satisfies Condition No.34(c) of the Notification No.12/2012 (customs).

(c) Grant such other relief or reliefs as deemed fit and proper in the circumstances of the case in the interest of justice and equity.

(d) Award Costs".

Having heard the learned counsel for the

petitioner, this Court is of the opinion that there is

absolutely no justification for the petitioner to file this

repetitive writ petition. The petitioner-assessee was

expected to attend to the proceedings before the

Adjudicating Authority in pursuance of the show-cause

notice issued to him, for which, the Respondent-

Director(TRU-I) has already made it clear in the

impugned communication Annexure-A dated

10.10.2017 that the Adjudicating Authority namely, the

Commissioner/Prl.Commissioner may not be influenced

by the Instructions dated 15.04.2013.

The impugned communication Annexure-A

dated 10.10.2017 is quoted below for ready reference:-

"To,

Rajesh Exports Limited

No.4, Batava Chambers

Kumara Park East

Bangalore-560001.

Room No.146 H, North Block

New Delhi, dated the 10th October 2017

Sir,

Subject: Reference to your representation dated 15.03.2017 and 21.03.2017 regarding modification of clarification dated 15.04.2013 - regarding.

Please refer to you representation dated 15.03.2017 and 21.03.2017 on the subject and direction of Hon''ble High Court of Karnataka vide para 4 of the order dates 17th July 2017 in W.P.No.13749/2017 wherein Director (TRU-1) is the respondent.

The Instructions issued vide F.No.354/4/2012 - TRU (Part-I), dated 15.4.2013 was issued to Commissioner (Import and General) in response to a query raised by him in letter dated 12.11.2012 vide F.No.VIII (12)/I&G/GRPIII/CH-71/Misc./34/2011, regarding import of gold dore bars under Custom Notification No.012/2012, seeking guidance on the same.

Since the matter has traveled upto Hon''ble Supreme Court and directions have been issued by the Hon''ble Supreme Court and High Court. In the meantime, certain Show Cause Notices were also issued by Directorate of Revenue Intelligence (DRI) for deciding the issued following the following principle of natural justice. In accordance with the provisions of Customs Act, 1962. Hon''ble Supreme Court vide order dated 21.11.2016 in Special Leave Petition, SLP (CC) 21709/2016 has interalia directed as follows, while not interfering with the impugned order of the High Court at SLP stage.

"However, we make it clear that the show- cause notice may be decided by the authorities without being influenced by the orders passed by the high Court i.e., learned Single Judge and Division Bench".

Subsequently, the Hon''ble High Court of Karnataka in the mater of WP 13749/2017 vide Order dated 17.07.2017 in respect of representation dated 15.03.2017 and 21.03.2017 ordered to decide the said representations after affording reasonable opportunity of hearing to the petitioner. Accordingly, the personal hearing was held on 20.09.2017 before Director (TRU) wherein Shri Rajesh Mehta requested for modification and also submitted the written submission dated 20.09.2017. (Copies enclosed).

On careful consideration of the facts, the representations and submissions made in the said hearing, it is felt that issuance of any direction or instruction at this stage, would amount to interfering with and would influencing the adjudication proceedings in the impending show cause notice. In view of the explicit directions of the Supreme Court to adjudicating authority, the Adjudicating authority is free to decide the Show Cause Notices and the issue on admissibility of notification in the merit of the case, satisfying himself of compliance of the conditions of the notification by importer. While deciding the issue, the Commissioner/Principal Commissioner may not be influenced by the said instruction dated 15.04.2013.

The references stand disposed off accordingly.

Yours faithfully,

Sd/-

Reyaz Ahmad

(Director -TRU-I)"

In view of the aforesaid, there is no justification

for this Court to interfere in the matter again and the

Adjudicating Authority is expected to pass orders in

accordance with law adjudicating show-cause notice

issued to the petitioner.

The writ petition is accordingly disposed of. No

costs.

Copy of this order be sent to the Respondent

forthwith.