OMKAR OVERSEAS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) Learned Counsel for the Petitioner while arguing the matter, took us to a circular Annexure G which was placed before the authority hearing the Revision Application, along with written submissions, vide Annexure E. Learned Counsel submitted that in view of that circular the officer hearing the revision application ought to have decided the same in favour of the petitioner and against the Commissioner. He further submitted that the manufacturer who has committed similar mistake has not been dealt with very seriously. He pointed out that order passed by the Commissioner in this regard which is at Annexure B dated 27-9-1999. In the order portion, the Commissioner has confirmed the demand of Rs. 5,28,857/- and has imposed penalty of Rs. 50,000/-. Learned Counsel submitted that in any case he could not have dealt with the exporter in a different manner. He further orally submitted that the penalty which was imposed on the manufacturer has been revoked subsequently in the appeal of course for which no document is placed before us.

(2.) Mr. M.R. Shah, learned Counsel appearing for the respondents submitted that as a matter of fact, the matter was heard before the officer concerned on 24th January, 2000 which is clear from Para 4 as well as Para 5 of the order. Para 5 reads as under :

(3.) Circular - Annexure G is dated 3-2-2000. Therefore, the circular could not have been pointed out to the authority at the relevant time. It appears that after the arguments were heard, along with the circular, written submissions were tendered on 10th February, 2000, which have been received by the department on 11th February, 2000. It is also indicated in the order in para 6. Thus, before the Court, picture is made clear by Mr. Shah that the circular was not in existence at the time when the arguments were made. In fact, no argument was made on the basis of the circular. The department was not given any opportunity to meet with any submission made in writing. It is further required to be noted that the authority has come to a conclusion that there is enough evidence showing the intention to evade the payment of duty of Rs. 17,756/-, Rs. 3,545/- and Rs. 19,748/- and therefore, it cannot be said that it is a clerical error. That apart, if the circular is read, it becomes very clear that the said circular will apply in the genuine cases only. Para 5 of the circular, if read, it becomes very clear that the benefit cannot be given to the persons who have no genuine case. After the appeal being disposed of, revisional authority has taken this view. In this petition under Article 227 of the Constitution therefore, this Court would not like to exercise powers. Hence, this petition is rejected.