GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (11) TMI 1233 - MADRAS HIGH COURT

2015 (11) TMI 1233 - MADRAS HIGH COURT - 2015 (325) E.L.T. 721 (Mad.) - Challenge to summons issues - Power to issue summons - Fraudulent availment of EPCG Scheme by way of endorsing EPCG licences with unconnected exporter's shopping bills in the third party details for obtaining EODC from DGFT - Held that:- Senior intelligence officer can be construed as a gazetted customs officer as he has authority to issue summons. As per the decision of the Supreme Court reported in [2007 (3) TMI 265 - SUPR .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itioner : Mr.V.Kathirvelu, Senior Counsel for Mr.KA.Raamakrishnan For the Respondents : Mr.R.Aravindan ORDER This Writ petition has been filed for issuance of a Writ of Certioari, calling for the impugned summon issued by the 2nd respondent in file No.DRI/CZU/TTN/48/05/INT-1/2015, dated 03.08.2015 and quash the same as illegal, incompetent and arbitrary. 2. The case of the petitioners is that the petitioners company is a manufacturer of spinning yarn and its related works. The company imported m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lling the imported machines, the company has obtained Installation Certificates from the Central Excise Department. The company has obtained exemption from Customs Duty after fulfilling Export Obligation, imposed by the Ministry of Commerce, Indian Republic under Foreign Trade Policy and as per the policy of the Ministry of Commerce, the company has to export the allied materials to foreign countries either manufactured by the petitioners' company or through third party company, within a per .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y of Commerce and after scrutinizing the documents, Export Obligation Discharge Certificate (EODC) has been issued to the petitioners company. The petitioners company made a submission before the Customs Authority at Tuticorin Sea Port for discharging of the duty for obtaining licenses and to cancel the Letter of Undertaking and also Bank Guarantee. The Assistant Commissioner of Indian Customs, Tuticorin Sea Port has passed an order discharging the petitioners from the customs duty and also dire .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ing EPCG licences with unconnected exporter's shopping bills in the third party details for obtaining EODC from DGFT. The petitioners appeared before the 2nd respondent through the petitioner's company officials, the 2nd respondent has not permitted the petitioner's company officials to attend enquiry and again sent a summon dated 03.08.2015 stating that the petitioners have to appear for enquiry on 10.08.2015. 4. The contention of the petitioners is that the summons issued by the 2n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

corin Port without payment of customs duty by availing import duty exemption / concession under the Customs notification issued under Section 25(1) of the Customs Act, 1962 as applicable to the Export Promotion Capital Goods (EPCG) Scheme. As per the terms of customs duty exemption, the importer is required to undertake specific export obligation to the extent of eight times import duty saved and to fulfill other conditions prescribed in the exemption notification. 6. It is stated in the counter .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

espect of exports made by third party exporters, by filing false certificates to the effect that the goods covered under shipping bills were manufactured by the petitioners. The factual position was that there is no commercial relationship or transaction between the third party exporters and the 2nd petitioner herein, had issued a false certificate certifying that the goods covered under shipping bills had been manufactured by the petitioners. 7. Based on the above, on 23.07.2015, the officials .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd completed the formalities with the office of the JDFGT. On obtaining the EODC from the JDGFT, they got the bond and Bank Guarantee, furnished at the time of import of the machinery under EPCG scheme and had then cancelled from the Custom House, Tuticorin. Evidences recovered from the petitioners indicate that they got the endorsement of their EPCG licences in the shipping bills of third party exporters on payment of a commission, calculated at the rate of 3% of the EO, to the third party expo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ondent in person to give evidence in connection with the above issue. 9. It is stated that the Export Promotion Capital Goods (EPCG) Scheme has been framed to extend concessions in import duty on capital goods for promoting exports. The exporters shall be directed to export goods in the name of the EPCG licence holder. However, the export through third party as defined in Chapter 9 of the Policy is also permitted under the EPCG scheme. 10. Chapter 9 of the Policy defines the "Third-party ex .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed false certificates along with the 2nd petitioner and got their export obligation discharged and shared the benefit. 11. It is stated that the summon had been issued to the Executive Director of the petitioners company directing them to appear before the authority. Subsequently, another summon was issued requiring the appearance of the petitioner on 03.08.2015. It is stated that the Central Board of Excise and Customs (CBEC) vide Circular No. 4/99-Cus dated 15.02.1999 has directed that Directo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n an investigation. 12. It is further stated in the counter affidavit that under Section 108 of the Customs Act, 1962, any gazetted officer of customs is empowered to summon any person either to give evidence or to produce documents or any other thing during enquiry. The Government of India vide notification No.31/97 Cus (N.T) dated 07.07.1997, in exercise of the powers conferred by sub section (1) of Section 4 of the Customs Act, 1962, all officers of the Directorate of Revenue Intelligence are .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itioners as part of investigation to bring out the truth and complete the investigation and only thereafter, show cause notice will be issued and then opportunity will be given to the petitioner to defend. Hence, the 2nd respondent prayed for dismissal of this Writ petition. 13. The only submission made by Mr.V.Kathirvelu, learned Senior Counsel appearing for the petitioners is that the summons has been issued by the Senior Intelligent Officer under Section 108 of the Customs Act, 1962. However, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

also invited the attention of this Court to the notifications issued under Customs Act, 1962 and submitted that Senior Intelligent Officer has no power to function under Section 108 of the Customs Act. The learned Senior Counsel further submitted that Section 148 of the Customs Act deals about the issuance of summons and production of the documents. Section 108 speaks about any gazetted officer of the customs, who has the power to summon the concerned, either to give evidence or produce the doc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

conferred under Section 4(1) of the Customs Act, 1962, the Government of India has appointed all officers to the Directorate of Revenue Intelligence to be the officers of Customs. Therefore, the 2nd repsondent being the gazetted officer of the Customs, is empowered to issue summons under Section 108 of the Customs Act. 16. The learned standing counsel for the respondents relied on a learned Single Judge of this Court in W.P.(MD)No.12136 of 2014 (Abhishek Mundhra Vs. The Additional Director Gene .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

preme Court in the case of Sayed Ali & Anr., (Supra) on 18.02.2011, Section 28 of the Act underwent an amendments by Customs (Amendment and Validation) Act, 2011, fistly on 08.04.2011, then again on 16.09.2011. By virtue of the amendment, sub section (11) was inserted to Section 28. Thus, the objection, which is being raised based on the decision in the case of Sayed Ali & Anr., (Supra) is no longer available in the light of the insertion of sub section (11) of Section 28 Thus it is subm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version