YASH EXPORT INDUSTRIES Vs. UNION OF INDIA

JUDGEMENT

(1.) Summons dated 9.4.1999 issued under Section 108 of the Customs Act. 1962 (in short the 'Act') being Annexures-3 and 4 are sought to be quashed by issuance of writ of certiorari. Further relief claimed herein Is that the respondent No. 5 be directed to clear the shipping bills of petitioner No. 1. a proprietorship firm of which Shri Sudhir Malik claims himself to be the sole proprietor having export activities at S-25/265. K-4A. Vrindavan Colony. Sarsoli, District Varanasi. It is alleged in the petition that M/s. Sokasi International General Trading (LLG). Post Box No. 2215 A. I. Naumaiah. Ajman. UZAE. a foreign buyer, agreed to purchase goods viz, P.V.C. soles-One set of goods which the foreign buyer aforestated agreed to purchase was 25,000 pair P.V.C. soles @ $ 10.10 per pair and the other part of the consignment was of 32,000 pairs of P.V.C. soles @ $9.60 per pair. The contract price of the entire goods came to $ 5,59.700 and pursuant to the said contract, the petitioner got the goods prepared and packed in full container of 40 ft. and all necessary shipping documents along with the goods were deposited in the office of respondent No. 5 on 25.3.1999. It is further alleged that the goods are freely exportable and are placed under Open General Licence, i.e.. no export duty was payable on the goods which do not fall In the category of "prohibited goods". It is alleged in the writ petition that the petitioner No. 1 has been approaching and requesting the fifth respondent to clear the goods but it appears that the goods were detained by the respondent Nos. 2 and 3 and. therefore, could not be cleared. It is on these allegations that the present writ petition has been filed for the reliefs stated herein above.

(2.) The case of the respondents, as set out in the counter-affidavit, is that the petitioner No. 1 has attempted to export a consignment of P.V.C. soles and the credit rate of which is 20% of the f.o.b. value and in support of the consignment certain invoices submitted in proof of purchase of goods sought to be exported were found to be forged during the investigation by the Directorate and the export consignment is under investigation by the Directorate regarding 'over valuation'. The bank account of petitioner No. 1 in State Bank of India, Hari Nagar, New Delhi, it has been stated in the counter-affidavit, does not contain the photograph of Sudhir Malik. the proprietor of the alleged firm M/s. Yash Export Industries and the own account of the person who introduced the opening of the account Ashok Malik who does not contain any photograph and the address given therein has been found to be fictitious and this person was introduced in the bank by the petitioner No. 3 ; investigation with the Broker who had sold the DEPB scripts of M/s. Yash Exports Inc. indicated that petitioner No. 2 is In close contact with the petitioner No. 1 and to investigate the complete chain, petitioner Nos. 1, 2 and 3 have been summoned under Section 108 of the Act. It has been further alleged In the counter-affidavit that Varanasi address of the firm M/s. Yash Exports Inc. is a residential premises of Shri Mangesh Malik, who in his statement under Section 108 of the Act has stated that there is no office of M/s. Yash Exports Inc. at the given address and the landlord of the said premises has also given similar statement ; the Delhi address of the firm is also a residential premises owned by one Shri V. P. Garg, who in his statement dated 12.4.1999 under Section 108 of the Act has revealed that he rented the above premises to .Shri Vipin Chaudhary and Shri Sudhir Malik and that he never gave them permission to run office from the said premises and that there exists no office of M/s. Yash Exports Inc. at the above address. Shri Vipin Chaudhary too in his statement is said to have stated that no such office exists at the so called Delhi address ; the proprietorship concern namely M/s. Yash Exports Inc. (petitioner No. 1) is a bogus concern ab-initio ; assessment in respect of the consignment in question has been done by an officer junior to Assistant Commissioner which being impermissible in law. the Directorate Revenue Intelligence is examining the role of the officers In doing the irregular assessment and their statement under Section 108 of the Act has also been recorded. "Prohibited goods" according to the counter-affidavit are not only those goods which are restricted under the licensing policy and goods prohibited under various other Acts may also come within the purview of "prohibited goods". In order to support the value indicated In the shipping bill in question, the exporter is said to have submitted three invoices of M/s. Star Trading Company, Delhi which has been found to be a non-existent company and these facts according to the respondents, lead to an Inference that the Invoices are bogus. The shipping bills in question were filed by the Customs House Agent of M/s. Yash Exports Inc. but the statement of Customs House Agent recorded under Section 108 of the Act has revealed that he filed shipping bills without proper authorisation of the exporter and that he had not met the exporter at all. It is in these and other surrounding circumstances that the Directorate of Revenue Intelligence is looking into the over valuation i.e., declaring a highly exaggerated value of the goods under detention.

(3.) We have heard Shri G. C. Rawal assisted by Sri Atul Mehra for the petitioners and Shri S. N. Srivastava, senior standing counsel assisted by Shri Sanjay Kumar Singh. Additional Standing Counsel for the respondents.