TMI Blog2010 (4) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... 23722-23726 of 2004, - - - Dated:- 20-4-2010 - T. Raja, J. REPRESENTED BY : Shri S.D.S. Philip, for the Petitioner. S/Shri P. Bhuvaneswari, CGSC and A.P. Peter Gunasekaran, CGSC, for the Respondent. [Order (Common)]. - As the facts leading to all the writ petitions are almost identical, they are disposed of by this common order. 2. The petitioner's company is doing business for the last 40 years by manufacturing cotton yarn with 40,000 spindles from 1988 after expanding its textile goods from mill. The Government of India, in order to boost the exports of textile goods from India, introduced a scheme for liberalising the import of capital goods with export obligation and the Notification in Public Notice No. 59/ITC (PN)/90-93 dated 7-9-1990 was issued by the Director General of Foreign Trade/3rd respondent herein, to facilitate the import of capital goods by manufacturers, who do not fulfil the export performance criteria for the past 3 years as laid down in sub-paragraph 2 in paragraph 197 of Import and Export Policy, April 1990, March 1993 Volume I, Subject to such conditions as may be prescribed by the Government. The conditions stipulated that they s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to issue import license by order dated 15-11-1990, the petitioner once again took up the matter before this Court in W.P. No. 2243/1991, seeking a direction to the Government of India, Ministry of Commerce and the Chief Controller of Imports and Exports to grant the petitioner's company the facility of import of capital goods under concessional rate of duty as per Import Policy of 1990-93. Subsequently, the petitioner filed W.P. Nos. 2859 and 2860 of 1991 seeking to direct respondents 4 and 5 to clear 4 nos. of Cherry Combers, two each, in Bill of Entry Nos. 05983 and 05988 dated 15-2-1991 and W.P. No. 2924 of 1991 filed to clear 4 nos. of Toyoda combers in Bill of Entry No. 08173 dated 23-2-1991 with reference to paragraph 197 of the Import Policy, Volume I. This Court by order dated 11th and 12th March 1991 in W.P. No. 2243/1991 observed that the goods can be cleared under the following conditions, pending disposal of the above said writ petitions. (a) The petitioner shall pay the admitted duty in cash. (b) The petitioner shall also pay 50% of the differential duty in cash. (c) The petitioner shall furnish a Bank Guarantee for the balance 50% of the differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of capital goods under concessional rate of customs duty as per the import Policy 1990-93 cannot be held to be valid and directed the respondents to pass orders afresh taking into consideration the Public Notice No. 59/ITC/PN/90-93 dated 7-9-1990 within a period of three months". But, the order was not complied with by the 3rd respondent. However, the petitioner placed full particulars before the committee as require to show as to how the export obligation has been fulfiled 100% by petitioner company with reference to import of the subject capital goods. Again, no orders were passed. Therefore, the petitioner made a representation to the 3rd respondent for early orders by requesting the import of 9 nos. of machineries. But, surprisingly, the petitioner received a letter in File No. 01/36/18/291/AM/90/EPCG-1/6038, dated 22-3-2002, rejecting the request for issue of EPCG Licence, as the licence under 25% duty scheme as per the policy prevailing, during 1990-91 cannot be issued under the current policy. Challenging the rejection order, the present writ petition has been filed on the ground that there was total non-application of mind by the 3rd respondent in rejecting the original I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued under the policy provisions applicable with different export obligations. In fact, the Director General of Foreign Trade/3rd respondent herein, has considered the application of the petitioner dated 20-8-1990 and 17-9-1990 as per the then existing policy provisions and the same was rejected. The case was reviewed by the 3rd respondent and decision was taken on 28-2-2002 only in pursuant to the order passed by this Court on 9-11-1998, by keeping in mind the provisions of the Public Notice No. 59/ITC/90-93 dated 7-9-1990. Therefore, the petitioner is not entitled to take shelter under false pretext instead of accepting under EPCG Scheme. 7.Heard the learned counsel appearing on either side and perused the materials available on record. 8. It is relevant to keep in mind that the petitioner is aware that he is not entitled for issuance of licence, as the concession facility was extended to manufacturers, who do not fulfill past 3 years export performance criteria. But, in the petitioner's case, not only number of years of export performance was not fulfilled, but also in view of their meagre exports only during one year at the time of submitting their application for issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certificate. Therefore, the Customs authorities are entitled to collect the entire duty liability involved in import of capital goods. 10. Now the other ancillary question that arises is whether the petitioner has complied with the import Export Policy. Para 197 of Import Export Policy provides for import of capital goods at concessional rate of customs duty. Para 197(2) states that the above facility would be available to registered manufacturers-exporters, who had been regularly exporting for a period of not less than 3 years. The above said paragraph again states that only direct exports of the products manufactured through capital goods permitted for import, shall be counted for fulfillment of the obligation. The claim of the petitioner that Public Notice No. 59 dated 7-9-1990, by way of an amendment, permitted even a new industry to apply for a licence to import capital goods under EPCG Scheme vide Para 197 of Exim Policy cannot be accepted. The amendment brought out at para 197 in Public Notice No. 59 dated 7-9-1990 states that "this facility may also be allowed, on merits, to the other manufactures who do not fulfill the past three years export performance criteria, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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