TMI Blog2001 (1) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 pieces of gents neckties and 2000 pieces gents long coats. At the time of despatch of the aforesaid goods for export the Customs Authority duly cleared the same and allowed to export. After that the shipment was effected. It is stated by the petitioner that payment as against the aforesaid exports were received under irrevocable Letter of Credit, as the value thereof in the Foreign Exchange have been realised by invocation of letter of credit. Shortly thereafter an application under Section 75 of the Customs Act 1961 was made claiming benefit of drawback duty for the goods which are excisable and which were used for manufacturing of the aforesaid exported goods. The authority concerned, however, initially refused to entertain the application, later the same was compelled to be received through the intervention of the Court by passing orders in Writ Jurisdiction. The application was rejected by the appropriate authority and an appeal was taken out against that order. The Appellate authority set aside the order and remanded back to the authority concerned. Even thereafter, this application was not disposed of, so the writ petitioner once again came to this Court for getting the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or by allowing on merit. There is no warrant to issue such show cause notice. This exercise according to Mr. Mullick, on part of the concerned authority is ultra vires the provision of the Customs Act, so to say, without jurisdiction. He also contends that the authority concerned rejected a claim on the premise dehors the provision of law and the conclusion arrived at is patently conflicting with the ratio and the principles decided by the Supreme Court of India reported in 1988 (35) E.L.T. 241 at page 252. He also draws my attention to the provision of Section 75 and corresponding rules thereunder and submits that it is not the authority or jurisdiction of the authority concerned to examine whether the export has been effected really or not. The authority concerned is to examine as to whether the goods have been entered for export and in respect of which an order permitting clearance and loading thereof for exportation has been made under Section 51 by the proper officer. So he is to examine those areas only nothing more or less. But the authority concerned sadly enough, has undertaken such exercise which is not permissible under the aforesaid section. The said authority has adop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence of the effective alternative machinery and in view of the judgments of the Supreme Court reported in AIR l983 SC 603. 4. His further contention is that upon proper investigation it was found that the consignee did not receive the goods. Indian High-Commission at London at the request of DRI investigated into the matter. Appropriate department of Russian Government has reported that the goods were not received by the consignee. So in substance, there was no export though the consideration has been received. He submits that no person can take the benefit of a fraud and the fraud can be detected and set at right at any time whenever it is drawn to the attention of the Court. In support of this proposition he has relied on three decisions of the Supreme Court reported in 2000 JT Vol. III 152, JT 1997 SC P. 135 and JT 1993 (6) SC P. 33. 5. Having heard the learned Counsels and considering the materials placed before me I am to first address the question of entertainability of the writ petition in view of existence of alternative remedy. This question has to be answered inasmuch as this point had been taken specifically at the first available opportunity when this writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceptions still the discretion is left with the Court as to whether this should be entertained or not. 8. The petitioner has complained of lack of jurisdiction on part of the appropriate authority. Now I am to examine as to whether the authority concerned lacks its jurisdiction to entertain or dispose of this matter. It is not correct to contend that the authority concerned does lack of inherent jurisdiction. Lack of jurisdiction contemplates two things-one is lack of the authority to entertain complaint, and another is jurisdiction to decide the subject matter. In other words power of entertaining such disputes emanates from from within four corners of the section which conferred power upon the authority concerned. It appears in this case it has been alleged that appropriate authority has decided this matter in such a manner which could not lawfully be possible according to real intention and purport of Section 75 of the said Act. So, I hold that in this case question of jurisdiction of the authority is involved and the writ petition should be entertained. 9. Moreover, I am inclined to exercise my discretion to entertain this writ petition in view of the fact that the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has been made under Section 51 by the appropriate Officer, (3) or being goods entered for export by post under Section 32 (which is not applicable here). 12. If the proviso of sub-section (1) of Section 75 are read together with sub-section (1) then it would appear that whole idea to grant the benefit of drawback duty is to increase, permit and develop the export. So, when the Customs Authority is satisfied that the goods are brought for export and the clearance thereof is permitted and particularly when the consideration for export has bean released and/or ensured then nothing is to be looked into for the purpose of granting benefit of drawback duty, no matter whether the goods have been received by the consignee concerned. In this connection I find a Supreme Court decision cited by Mr. Mullick reported in 1988 (35) E.L.T. page 241. In that case the Supreme Court in an extreme situation has held amongst other the export means that the goods must be taken out to a place outside India. The expression taking out to a place outside India would also mean a place in High Seas if it is beyond the territorial waters of India. The meaning of the word export for this purpose has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cceptable materials in my view tantamounts to finding on no evidence. There is no doubt in my mind that this order rejecting the application on the aforesaid ground of non-receipt of materials is not sustainable under the law and this needs fresh determination by the authority concerned within the parameter of Section 75 and the rules framed thereunder for granting benefit of drawback duty. Therefore, I set aside the impugned order. I accordingly direct the authority concerned to consider this application afresh and strictly following the observation of Justice B.M. Mitra and Justice Gupta (as Their Lordships then were). The authority concerned shall treat this case as export has taken place and accordingly decide the same in accordance with the law. The authority concerned shall examine as to whether the conditions as explained by me have been fulfilled in this case or not, if it is so then they will quantify the same in accordance with the rules as provided. 17. This application, therefore, succeeds. There will be no order as to costs. 18. Xerox certified copy of this Judgment if applied for be supplied to the parties as expeditiously as possible. - - TaxTMI - TMITax - Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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