OPTIGRAB INTERNATIONAL Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) WRIT Petition filed under Article 226 of the Constitution of India praying for the issuance of a WRIT of Certiorari calling for the records relating to the proceedings in No.C.I.No.VIII/10/71/2008-SC dated 11.11.2008 on the file of the second respondent and quash the same and consequently direct the second respondent to consider the application of the petitioner and pass orders on merit.) The prayer in this writ petition is to quash the order passed by the second respondent dated 11.11.2008 and direct the second respondent to consider the application of the petitioner seeking settlement by Settlement Commission, Customs and Central Excise.

(2.) THE facts necessary for disposal of the writ petition are as follows: (a) THE petitioner firm is a leading export house for the purpose of exports for the countries viz., Germany, Canada and other European countries. THE firm has been allotted with Import Export Code No.0497012880. THE respondents have offered certain duty free import items for the purpose of importing in raw material stage for the purpose of exporting the same after completing the manufacturing activity. (b) Under Rule 19(2) of the Central Excise Rules, 2002, the petitioner firm availed certain duty free import of cotton yarns and fabrics, without paying duty for such imports. Such imported cotton yarn and fabrics were supplied to different manufacturers in Coimbatore, Salem and other parts of Tamil Nadu. According to the petitioner, due to oversight and inadvertance, certain finished products were also received and the same were re-exported to various overseas buyers and availed duty drawback concession. (c) As per Rule 3 of the Customs and Central Excise Duty Drawback Rules, 1995, read with the notification issued thereunder the import of duty free articles shall not be subjected to any duty drawback concession and if the exporter is prohibited from claiming any duty drawback concession at the time of export of the consignment for which raw materials were imported under duty free import scheme. According to the petitioner, inadvertantly it availed duty drawback concession for the negligible quantity of raw materials and the same was exported along with other consignments during 2003-2004 and the same was brought to light only when the first respondent took action and searched the office premises of the petitioner on 19.11.2004. Petitioner claims that the same was realised and a sum of Rs.10,35,585/- was paid on 8.12.2004. (d) THE first respondent issued three show cause notices on 9.9.2008 under section 124 of the Customs Act, 1962, calling for explanation from the petitioner as to why the payments made by the petitioner shall not be appropriated for the violation of illegal claim of duty drawback concession made during the year 2003-2004. THE said different show cause notices were issued since the petitioner exported from three different ports, namely Seaport, Chennai Airport, Chennai and Seaport, Tuticorin though all the exports were made by the petitioner under single transaction. (e) THE petitioner firm, instead of conducting the cases, expressed its intention of invoking Section 127 of the Customs Act, 1962, and sought for amicable settlement before the second respondent. THE condition precedent for invoking the jurisdiction of the second respondent as per section 127-B is that minimum duty payable by the exporter shall not be less than Rs.3 lakhs and no appeal shall be pending before any court. THE petitioner claims that it is fully qualified to get the matter settled under section 127 and submitted an application on 3.10.2008. (f) On receipt of the said application, the second respondent raised certain queries on 28.10.2008 with regard to the compliance of the conditions contained in section 127-B of the Customs Act and interest calculation. Seven days time was given to comply with the said discrepancies. THE same was complied with on 3.11.2008 and on 11.11.2008 the impugned order was passed holding that three show cause notices were issued by three adjudicating authorities in three different commissionerate and therefore there are three cases and the said cases cannot be considered as one. As per section 127-B of the Customs Act, 1962, settlement application is maintainable if an additional amount of duty exceeds Rs.3 lakhs and therefore the application seeking settlement of three disputes cannot be treated as one and the petition is not maintainable. (g) THE said order is challenged in this writ petition on the ground that division of various commissionerate are only for the effective administration and collection of revenue. THE three show cause notices are arising out of single export transaction and the same has been paid instantaneously when the mistake was brought to light and therefore the settlement application is maintainable, particularly when the import export code being common.

(3.) THE point in issue is whether common settlement application filed by the petitioner in respect of three show cause notices is maintainable in terms of section 127-B of the Customs Act, 1962 ?