9911796707
TMI Blog2007 (10) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... suitable for carrying 40 thousand liters per barrel, complete with all other components and fittings for a FOB value of Rs. 60,42,000/-. As the supplies were to be made under a World Bank project, it was a 'deemed export' by it petitioner to NDDB, Anand. 3. It is an undisputed fact that as against the first order for 11 barrels, the petitioner manufactured two barrels with stainless steel purchased from the local market, and supplied them to the purchaser. A Special Imprest Licence No.3197096 dated 14h September, 1988 was issued by the Controller of Imports and Exports to the petitioner to meet the export order for the balance 19 barrels. In terms of the license, the petitioner was to import Stainless Steel/Coils-AISI 304 of the following specifications : (a) S.S. Sheets 3.15 M.M. 47,500 Kgs. (b) S.S. Plates 5.00 M.M. 12,967 Kgs. (c) S.S. Sheets 2.00 M.M. 2,375 Kgs. &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner alleges that it adequately fulfilled its export obligation under the Import License. Four Barrels were, however, supplied beyond the nine month period, for which the NDDB allegedly agreed to an extension of time. 8. The petitioner was issued a Show Cause Notice dated 20th October 1994, by the Deputy Director General of Foreign Trade, proposing action against it for alleged non-fulfilment of export obligation against the Import License, and DEEC Book No.006143. The petitioner was charged with having failed to discharge the export obligation according to conditions attached to the license. It was called upon to furnish, within 15 days, the documents, or show cause within 15 days why action not be taken against it for forfeiture of Bank Guarantee/enforcement of Legal Agreement and to enforce the other conditions of the Bond/LUT executed by it, apart from declaring it a defaulter. The Deputy Director General of Foreign Trade passed an ex-parte Forfeiture Order dated 22nd November 1994, holding that the petitioner had violated the Import License and the legal Agreement and declaring it a defaulter, thereby, disentitling it to any License/RO/CCS, either under any sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also suggested that the same should be treated as a default of a technical nature and the action initiated by this office is unjustified and unwarranted. 7. After careful consideration of the matter and totality of the case following orders are made :- (i) The approach adopted by this office was just and fair, in as much as full opportunity with the facility of personal hearing was provided to M/s. Mohan Machines Ltd., at all possible times to comply with the requirement of import and export policy/procedure. M/s. Mohan Machines Ltd., has not contested this fact during the personal hearing. The facility of duty free imports is provided for time bound completion of export obligation. Any violation in this regard is to be treated as breach of rules and procedure of the relevant import and export policy procedure which ultimately leads to initiation of action in accordance with the prescribed procedure. This fact has also not been contested by the officials of M/s. Mohan Machines Ltd., during the personal hearing. Consequently the action taken by this office to enforce bond, bank guarantee and issuance of demand notice is fully justified. (ii)&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation to CCI and E (now DGFT) for getting extension in the export obligation period to cover the supplies made after the due date of obligation. For this purpose no permission is needed from this office. M/s. Mohan Machines Ltd., being a regular exporter are award of this fact. They can always make such representation without any permission from this office to any authority. (v) M/s. Mohan Machines Ltd., vide letter dt. 24-12-96 has also contended that the default on their part should be treated as a technical one and our action is unjustified and unwarranted. This contention is absolutely wrong and incorrect. M/s. Mohan Machines Ltd, know and have accepted that they are under specific time bound obligation. M/s. Mohan Machines Ltd., also know and they have made imports of duty exempt material to the full extent for the manufacture and supply of specific products and are required to submit the proof with complete supporting documents within a specified time frame indicated on the licence. The company has voilated this aspect. M/s. Mohan Machines Ltd., have also accepted that in respect of some supplies even the payment have also not been given by the proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fell into error in finding that there was no certification by the NDBB that supplies were made. 13. Learned counsel urged that the finding that in the absence of DEEC (Export) Book, the supplies made could not be considered for acceptance towards discharge of export obligations was in error. It was contended that the DEEC Book no doubt contains details made and certified by the Project Authority. Yet the stand that no other evidence would be accepted or looked into was entirely arbitrary. Learned counsel submitted that the Petitioner established that five Stainless Steel Barrels had been in fact imported within the time. As far as the balance four were concerned, requests were made on 6-1-1991 and 6-7-1991 for extension of time. The response to these was made much later on 23-10-1992. Lastly reliance was placed upon copies of the NDBB documents, certifying payment to the Petitioner as well as the Certificate of Payments issued by the NDBB i.e the Project Authority in Form 1(A). It was submitted that all these were produced along with the appeal and the written submissions, before the Joint Director General. 14. Learned counsel for the Respondent reiterated contents of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered into an agreement for import and manufacture of 21 Stainless Steel Barrels for their use in transportation of milk by rail to the NDBB. Under the prevalent Import Export policy, the Controller of Imports and Exports issued a Special Imprest license on 14-9-1988. The approximate CIF value of the goods to be imported were Rs. 24,19,909/-. The customs duty on these goods were exempted. A corresponding export obligation of FOB value by way of manufacture and supply of Stainless Steel Barrels to the NDBB for the value of Rs. 60,42,000/- within nine months concerning specified items was imposed. It is a matter of record that the quantities were eventually reduced, A copy of the Minutes of Meeting held between the Petitioner and NDBB on 3-9-1993 and the letter dated 3-9-1993 canceling the order for 10 Barrels is a part of the record. As a result the quantity was proportionately reduced; the Petitioner had to import Stainless Steels sheets and plates of the CIF value of Rs. 10,51,021/- and make a corresponding deemed export/supply of the agreed items for the value of Rs. 25,01,687/-. 18. It is a matter of record that a marginal excess quantity was imported; the Petitioner paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter dated 26th April 1996, having been filed hid (sic) the counter, in the office of the Joint Director General of Foreign Trade, is enclosed herewith as Annexure-11. 20. Having complied with the direction issued to the petitioner by the office of the Joint Director General of Foreign Trade, vide the letter dated 15th April 1996, the petitioner awaited the decision of the Joint Director General of Foreign Trade, on the petitioners' appeal, against the ex-parte Forfeiture order dated 22nd November, 1994 of the Assistant Director General of Foreign Trade." 21. In its counter affidavit the Respondents denied Para 11 generally and stated that the DEEC Book was not resubmitted in its office. The counter affidavit of the NDBB, on the other hand, is categorical; it submits that two Barrels were manufactured from local stainless steel materials and the balance 9 barrels were manufactured from imported stainless steel material under the Special Imprest License obtained by the Petitioner. The Petitioner has produced copy of the Bill of Entry. In addition it has filed copies of Invoices and payment Invoices for the quantities bill to the NDBB and the payment advise. The Certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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