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2021 (10) TMI 190 - HC - CustomsAdvance License scheme - Invocation of Bank Guarantee - failure to achieve export obligation - waiver of statutory interest - regularisation under clause 4.28 of the Handbook of Procedures - power of judicial review under Article 226 of the Constitution of India - HELD THAT:- The case of the petitioner, on admitted facts, will fall under clause 4.28 (iii). Clause 4.28 deals with the situation where the export obligation has been fulfilled in value terms but there is a shortfall in the terms of quantity and clause 4.28 (ii) deals with the situation where the export obligation is fulfilled in quantity but there is a shortfall in value. Both situations contemplated by clauses 4.28 (i) and 4.28 (ii) provide separate methods for calculation of the amount payable for regularisation. Clause 4.28 (iii) provides that where the export obligation is not fulfilled both in terms of quantity and value the amount payable will be as the amount calculated under clauses 4.28 (i) and 4.23 (ii). A combined reading of clauses 4.28 (i), (ii) & (iii) leads to the conclusion that the petitioner will have to pay interest also if it intends to regularise its default in terms of clause 4.28. From the facts as pleaded in the writ petition, it appears that the petitioner never applied for regularisation in terms of clause 4.28 of the Handbook of Procedures. Whether the delay in disposal of Ext.P1, should result in an order relieving the petitioner of the liability to pay interest as demanded in Ext.P11. Interest under the Customs Act is statutory? - HELD THAT:- The petitioner admittedly paid the amount due on account of failure to meet the export obligation only on 27-08-2013. The advance licence was issued in 2004 and the export obligation period was 18 months from the date of issue. Even accounting for the 6 months extension granted by the original authority, the period of export obligation would have expired in 2006. The petitioner was able to import materials without payment of customs duty only in terms of the advance licence. The petitioner, on failure to meet the export obligation, was required to pay customs duty on the imported material. The export obligation period having ended in the year 2006 (even after the extension) the petitioner was bound to pay customs duty in the year 2006. The petitioner has paid the customs duty only in the year 2013. The petitioner could have opted to remit customs duty under protest - the petitioner cannot claim any exemption from the payment of interest. Petition dismissed.
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