MMTC Vs. SURJIT SINGH KANDA

JUDGEMENT

(1.) The aforesaid two writ petitions preferred by MMTC Ltd. (referred to as MMTC) (WP(C) No. 2063/2011) and the Union of India (W.P.(C.) No. 4553/2011) - pursued by the Assistant Commissioner of Customs, Noida Export Processing Zone (NEPZ) (referred to as the Customs Department), are directed against the common order passed by the Debt Recovery Appellate Tribunal (DRAT) in Appeal No.166/2005 preferred by the MMTC, in Appeal No.126/2005 (preferred by the Indian Bank) and Appeal No.13/2008 preferred by Customs Department. Since the impugned order is the same and the subject matter of dispute is also the same, we have heard common arguments of learned counsels for the parties and proceed to dispose of both the writ petitions by this common judgment.

(2.) Before we proceed to discuss the respective cases of the parties on merit, we wish to place on record our anguish about the failure of the parties concerned, i.e. the Customs Department, the MMTC and the Indian Bank to resolve the issues as raised in these petitions on their own, even though they all represent the State. On 14.11.2011, we had put it to counsel for the parties as to why the concerned Secretaries of the Govt. of India in the Ministry of Finance and the Ministry of Commerce should not sit together to resolve the issues. On 07.12.2011, we directed that the concerned Secretaries of the two Ministries should endeavor to work out an amicable resolution of the disputes, as all the parties are under the control of one or the other Ministries. In fact, the petitioners had sought time for the said purpose repeatedly, and on 20.07.2012 we had expressed the hope that since the matter is not complicated, a decision would be taken soon, as sufficient time had already lapsed. We had observed that the only issue is as to which pocket of the Government would be enriched, and judicial time should not be wasted on such matters. However, on 24.08.2012 we were informed that the committee of three Secretaries of the Govt. of India had failed to resolve the issue. We are dismayed with this conclusion as we feel that the officers at the highest level of the bureaucracy should have exhibited the maturity and decisiveness necessary to resolve the issues in a practical manner so as to save the avoidable expense and wastage of judicial time, considering the fact that, in any eventuality, the asset in question would continue to vest in one or the other organs of the Govt. of India. We feel that the hands off approach adopted by the senior officers in the bureaucracy leads to a state of indecision and stalemate, which is the bane of good and efficient administration. Decisions taken consciously, for good reasons recorded in the concerned file, with honesty and sincerity should leave no officer with any sense of insecurity that the decision may expose him/her to any charge of favoritism, corruption, discrimination or the like. We hope that the decision makers would hence forth not shy away from taking decisions - even difficult decisions, by adopting the aforesaid parameters so as to save the government machinery from coming to a grinding halt.

(3.) It appears that the MMTC- acting as a canalizing agency, in response of the government's policy to boost export of jewellery made from gold and silver was permitted duty free import of gold and silver on the condition that the imported gold and silver would be got converted into jewellery and duly exported in a time bound manner, vide exemption notification bearing No.258/87 dated 02.07.1987, No.177/94 dated 21.10.1994 as amended by notification No.3/88 dated 14.01.1988 issued under section 25 of the Customs Act, 1962 (the said Act). The MMTC executed the requisite bonds in favour of the Customs Department to fulfil its obligations of re-export of the manufactured jewellery in lieu of the duty free import of gold and silver made by it. The Bill of Entry for the imports was filed by MMTC.