COMMISSIONER OF CUSTOMS Vs. LGW LTD

JUDGEMENT

(1.) The appeal questions the legality of the order passed by a Single Bench allowing the writ petition filed by the respondent. There was dispute with respect to the goods presented for the purpose of clearance, physical verification of the goods as envisaged under Section 51 of the Customs Act. The clearance has to be made after goods are physically verified as provided in Customs Manual Chapter 3(II)40 to 245. It is not in dispute in the instant case that export of raw cotton (5021), Cotton Waste (5202) and Cotton, carded or combed (5203) was allowed. For this purpose a press note was issued by the Government of India, Ministry of Textiles, Office of Textile Commissioner on 30-9-2010. It was mentioned in the press note with reference to the earlier press note dated 15-9-2010 that process of registration of company to export of raw cotton (5201), cotton waste (5202), and cotton carded or combed (5203) for export authorisation will be made. The Ministry of Textile has conveyed decision taken by group of ministers in their meeting dated 28-9-2010 to the effect that actual export i.e. shipment would commence from 1-11-2010. The exportable surplus was identified as 55 lac bales in respect of raw cotton (5201). No registration to be made after the exportable surplus is reached. It was also mentioned that the 45 days of shipment period allowed, would be reckoned from the date of issue of EARC or 15-12-2010 whichever is later. This shipment period could not have been later than 15-12-2010.

(2.) The petitioner admittedly applied for registration and Export Authorisation Registration Certificate, in short EARC was issued to him on 12-10-2010 and 13-10-2010 with respect of raw cotton 5201. For the purpose of export the registration was valid up to 15-12-2010. Thus the last date by which export was to be completed under the EARC was 15-12-2010.

(3.) The petitioner admittedly presented bill of export between 4-12-2010 and 14-12-2010. However, goods were presented for physical verification on 16-12-2010. They were not cleared for export as validity of EARC had expired on 15-12-2010. The instruction was sought by the Commissioner of Customs, West Bengal from Ministry of Textiles by sending a fax message dated 16-12-2010 in which it was mentioned that whether the goods covered under bill of export filed with the land customs stations on or before 15-12-2010 and duly appraised can be allowed to be exported. It was observed by Ministry of Textiles that filing of bill of export with land custom stations is a procedural document and a part of "various formalities" to be followed right form handling of the goods by the exporters for shipment "till the goods under reference is cleared at the border". Thus permission was not accorded and it was observed that the clarifications may be obtained from their parent administrative ministry i.e. Ministry of Finance, Department of Revenue. Ultimately the goods were not cleared under Section 51 of the Customs Act on the ground that goods were presented on 16-12-2010 for physical verification after the expiry of period of EARC on 15-12-2010.