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2016 (2) TMI 860

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..... company constituted by the Government of Australia under the statute known as "Gold Corporation Act, 1987'. The words "in accordance" requires a literal interpretation and should not be confused with the use of words "along with goods". Both of them would give different meanings. Learned counsel for the petitioner is correct in his submission that the words "in accordance" when inserted in the condition 34(b) in the Notification No.12/2012, the requirement was to furnish the 'packing list' and if so done, it cannot be said that there is non compliance with condition No.34(b). If the words "along with" is placed by removing the words "in accordance", then a different meaning could be attached to compliance of Section 34(b); that is the goods will have to be necessarily accompanied by 'packing list'. Admittedly, petitioner produced the assay certificate and the 2nd respondent accepted the same on the date when it came to the Airport, Cargo Division and was permitted to be released while granting exemption from duty under the relevant Notification. Therefore, in my opinion, exfacie, petitioner did comply with the requirements of condition No.34(c) in the matter of import of go .....

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..... nd not as between the two governments of India and Australia. 3. Respondent No.2/Proper Officer, having cleared the import of gold dore bars during 2012-13, having undergone refinement/ purification, the 2nd respondent, thereafterwards, is said to have sought certain clarification from the Ministry of Central Board of Excise and Customs, Government of India, respondent No.1, who, it is said, by letter dated 15.04.2013, Annexure-D. 4. In the light of the aforesaid observation at praragraph 2 of the letter of the Director (Tax Research Unit), Government of India, Ministry of Finance, Department of Revenue, the 2nd respondent sought clarification regarding import of gold dore bars under Custom Notification No.012/2012 by letter dated 29.05.2013, Annexure-E, calling upon the petitioner to submit packing list from the mining company in respect of all past imports of gold dore bars imported from Perth Mint, Australia, so that the same may be compared and correlated with the packaging list issued by Perth Mint , to which, petitioner responded by communication dated 03.06.2013, Annexure-F, informing that it would not be possible for the petitioner to submit packing list of the minin .....

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..... Notification No.12/ 2012 dated 17.03.2012, subject to fulfillment of condition No.5 and 34 of the said notification by the importer. Condition No.5 and 34(d) it is said are postimport conditions while condition Nos.34(a), 34(b) and 34(c) of the notification are pre import conditions required to be fulfilled by the importer at the time of import and further that the onus to establish/prove fulfillment of the said conditions lies on the importer claiming exemption. It is said, condition No.34 reads thus: Condition No.34: (a) Gold dore bars are directly shipped from the country in which they were produced and each bar has a weight of 5 kg or above; (b) Gold dore-bars are imported in accordance with the packing list issued by the mining company by whom they were produced; (c) Importer produces before the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, an assay certificate issued by the mining company or the laboratory attached to it, giving detailed precious metal content in the dore bar; (d) Gold dore-bars are imported by the actual user for the purpose of refining and manufacture of standard gold bars of purity 99.5% and ab .....

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..... of condition No.34(b) of the notification. 3. As regards the assay certificate issued by the Perth Mint giving detailed precious metal content in the dore bar, it is noted that the Mint is 100% owned and guaranteed by the Government of Western Australia and established under an Act of Parliament (the Gold Corporation Act, 1987). The Perth Mint has also clarified that this is a laboratory attached to/appointed by the mining company. As per condition No.34(c) of the notification, an assay certificate issued by the laboratory attached to the mining company can be accepted. 10. Following the inquiry by the Directorate of Revenue Intelligence, petitioner was issued with show cause notice dated 15.07.2013 to state as to why benefit of exemption availed by them in violation of condition No. 34(a), 34(b) and 34(c) of the impugned notification should not be denied and duty short paid by them should not be demanded and recovered, Annexure-R1. 11. It was further asserted that petition invoking Article 226 of the Constitution was not maintainable, in view of territorial jurisdiction of this Court. That contention, in great elaboration from pages 51 to 60 is asserted making refere .....

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..... duced list of goods in accordance with packing list issued by the Australian Mining Company by whom they were produced, prepared by Perth Mint which merely certify that they had received gold dore bars from the mining company in Australia. With the above stated total gross weight and estimated purity for assay and that as required in the process of assaying they have melted the gold dore bars supplied, have taken testing samples from the melt, recast the gold dore bars and have prepared this packing list as per the gross weight and purity in accordance with the packing list issued by the mining company. According to the 2nd respondent, the self certificate was not found in similar 'list of goods' submitted for import prior to 3.10.2012, as also in respect of at least three consignments wherein 'packing list' found was totally different. Hence two types of 'packing lists', different from each other, not in accordance with the 'packing list' of the mining company, nothing more than handwritten chits, in the opinion of the 2nd respondent made it difficult to believe that the 'list of goods' containing properly printed tables is in accordance wit .....

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..... nt and the mining companies. The Perth mint and out laboratory is required to conduct an assay to LBMA standards on the gold dore bars produced by these mining companies and so the Perth Mint and out laboratory are appointed/attached through contract to these mining companies. 16. At paragraph 6.1, the 2nd respondent concluded that the aforesaid statements of Perth Mint establishes that it is not a laboratory attached to the mining company. At paragraph 6.2, respondent No.2 compares as an example thus if exemption is available to say green T-Shirt and an importer says in its declaration that its T-Shirts are green/red, then the exemption will be granted to only green TShirts and not to all drawing an analogy to import of gold dore bars and an assay certificate issued by Perth Mint, 2nd respondent concluded that it was for the Perth Mint to establish that it is attached to/or appointed by mining company so as to enable the petitioner to claim exemption, since the onus is upon the importer. 17. Although 2nd respondent extracted paragraph 3 of the letter dated 15.4.2013 Annexure-E of the CBEC, nevertheless observed that in terms of the notification, exemption can be granted .....

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..... /2012 dated 17.3.2012 as amended and not as normal rate as contended by the petitioner, while rates of duty on pure gold bars vis- -vis impure gold bars are totally distinct products eligible at concessional rates subject to fulfillment of exemption notification. 23. Petitioner filed a rejoinder to the statement of objections while not disputing the fact of import of the gold dore bars, and the clarification issued by way of a response to the communication of the 2nd respondent and the conditions required to be satisfied under the Notification No.12/2012. As regards the writ jurisdiction, it is asserted that this Court had the jurisdiction to maintain the petition. It is unnecessary to traverse the various averments with regard to maintainability of the petition as asserted by the petitioner. It is asserted that the requirements of the Notification No.12/2012 does not restrict a self certification, while, in fact, acknowledges such a clarification and therefore, the Assay certificate of Perth Mint cannot be faulted with and be termed as mere self certificate , Perth Mint being an Australian Government concern is a credible entity in the world. It is said that there is no requir .....

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..... ertificate of the mining company is required and the conscious omission of the words in accordance makes it mandatory for an Assay certificate of the mining company, which certificate could be either issued by the mining company or alaboratory attached to the mining company. 25. As regards the different versions in various Assay certificates issued by the Perth Mint, it is stated that the versions are clarified by a comprehensive certificate, Annexure-H, issued by Perth Mint, which reads thus: To whom it may concern In relation to our shipment references WAMD001 to WAMD056 dated from 2nd July 2012 to 145h February 2013 containing gold dore bars, we hereby confirm that: 1. Every gold core bar exported by us for transportation to India was produced in Australia and was shipped from Australia. Further, each of the gold dore bars exported by us and transported to India had a gross weight in excess of 5 kgs. 2. Every shipment of gold dore bars exported by us for transportation to India was in accordance with the packing list of the mining company with reference to the gross weight and purity as stated by the mining company. 3. Every shipment of gold do .....

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..... ralia weighing more than 5 kgs, thus complied with condition No.34(a) of the Notification. 28. On 27.11.2014 this Court having considered the pleadings of the parties and after hearing, noticed that during the pendency of the petition, a show cause notice was issued to the petitioner and therefore, keeping open all contentions of the petitioner to be urged before the competent authority who had issued the show cause notice, petition was adjourned for eight weeks. 29. During the pendency of the petition, on 27.11.2014 this Court having directed passing orders in the enquiry/investigation, it is stated that the same was completed with reference to three show cause notices dated 15.7.2013, 8.8.2013 and 9.12.2013 culminating in an order dated 27.11.2014 called in question in W.P.No.31835/2013 and in which the order was quashed. 30. On 18.3.2015 a learned Single Judge dismissed the petition as not maintainable without expressing any opinion on the merit of the case, which, when carried in W.A. 1482/2015, the Division Bench, by order dated 10.7.2015 allowed the appeal, set-aside the order, remitted the proceeding for fresh consideration, observing that it was difficult to uphold .....

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..... 015 an order was passed directing completion of adjudication before 30.11.2015. It is further assertion of the applicant that orders dated 7.11.2014 and 27.11.2014 of this Court relating to the adjudication pursuant to the show cause notices stood concluded and complied by original order passed of the 2nd respondent, which when challenged in W.P.No.2509/2015 was set aside by order dated 5.2.2015. 3. The proceedings pursuant to the show cause notices, it is said, is separate and distinct, in which, the petitioner is ready and willing to co-operate. The relief in the writ petition being separate and unconnected with the show cause notices, adjudication over the reliefs be considered at the earliest. In addition, it is stated that the request for early hearing of the petition is due to imports having come to a standstill and the refinery of the petitioner closed as raw material is not availability leading to joblessness of persons as well as financial stringency. The applicant further submits that there is compliance with conditions 34(a) (b)and (c) and the clarification Annexure 'D' is sufficient for the authorities to take a decision over compliance with the aforesaid .....

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..... ined to furnish, did not arise. It is on the said basis petition is filed to quash Annexure 'G' letter and to declare that condition Nos.34(b) and 34(c) of the notification Annexure 'A' is complied with, accepting the 'packing list' and Assay certificate issued by Perth Mint. 7. On the other hand, the Directorate of Revenue Intelligence initiated proceedings by issuing notices to show cause over nonfulfillment of condition No.5 of notification No.12/12, making reference to clause 34(a) (b) and (c) and in particular, that since imports of Gold Dore Bars were not accompanied by packing list issued by the mining company by whom they were produced, petitioner did not demonstrate before the custom authorities that Gold Dore Bars imported by it were in accordance with the packing list issued by the mining company by whom they were produced, so also that such imports were not accompanied by Assay certificates issued by the mining company by whom they were produced while those furnished were issued by the laboratory attached. 8. Thus, the issues arising for consideration before the Deputy Commissioner of Customs as indicated in Annexure 'G' l .....

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..... s were directed to conclude the proceeding by 30.11.2015. It is the assertion of the petitioner that copies of all the documents sought for are not made available, as is stated in I.A.No.3/2015. In that view of the matter, there is a need to modify the order dated 16.11.2015 and extend time to conclude the proceeding, a decision over which would be taken only after the response of respondent authorities over I.A. No.3/2015 and I.A.No.4/2015. I.A. No.3/2015 is allowed. Relist on 02.12.2015. 32. Learned Addl. Solicitor General filed a memo dated 2.12.2015 which runs thus: 1. In the above petition the petitioner has prayed for a) quashment of Annexure-G, letter issued by Respondent No.2 dated 18.06.2013 b) He has also for declaration that he has complied with condition No.34(b) and (c) of Notification No.12/2012. 2. Annexure-G is a letter addressed by Deputy Commissioner of Customs requesting the Petitioner to submit Packing list from mining company within a week in respect of all past imports of Gold Dore bars imported from a Perth Mint in Australia. 3. During pendency of this petition, Show cause notice has been issued to the Petitioner by Commissioner o .....

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..... resaid conditions of the notification and pursuant to the issue of show cause notice dated 09.12.2013 by the 2nd respondent, the petitioner would appear and put-forth its say, being an event subsequent to the import, seeking clarification from the petitioner. The submission is seriously opposed by learned ASG on the premise that a declaration of the nature sought by the petitioner would scuttle the entire proceeding initiated under Section 28 read with Section 18 of the Customs Act, 1962 since the enquiry is over whether petitioner has complied with condition Nos.34(a), (b) and (c), though it is post import of the gold dore bars. 35. The case put-forth by the petitioner and as resisted by the 2nd respondent and not by the 1st respondent since in the letter of the 1st respondent at paragraph 3, Annexure-D is said petitioners import of gold dore bars, were fully satisfied, since all the documents furnished by the petitioner recorded compliance with conditions 34(a), (b) and (c), thus entitled to exemption under the Notification. In the circumstances there is a need to answer the question as to whether on the date of import and permission granted by the Customs Authorities, whether .....

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..... tituted by the Government of Australia under the statute known as Gold Corporation Act, 1987'. The words in accordance requires a literal interpretation and should not be confused with the use of words along with goods . Both of them would give different meanings. Learned counsel for the petitioner is correct in his submission that the words in accordance when inserted in the condition 34(b) in the Notification No.12/2012, the requirement was to furnish the 'packing list' and if so done, it cannot be said that there is non compliance with condition No.34(b). If the words along with is placed by removing the words in accordance , then a different meaning could be attached to compliance of Section 34(b); that is the goods will have to be necessarily accompanied by 'packing list'. When such is not the intendment of the Notification, therefore, the 2nd respondent, at the time of acceptance of self declaration of the petitioner of import of gold dore bars from Australia by producing the packing list, Annexure-B, and the assay certificate issued by Perth Mint, being satisfactory compliance with condition No.34(b) of the Notification, permitted the import. .....

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..... e bars. Even in the past, i.e., prior to Notification No.12/2012 all imports by the petitioner were permitted on satisfactory compliance of the conditions in notification No.21/2002 and thereafterwards under the Notification No.12/2012. In that view of the matter too, as on the date of import, it cannot but be said that there is compliance of condition No.34(c) of the Notification. 41. From the material on record, more appropriately the packing list, Annexure-B and the assay certificate, Annexure-C of Perth Mint relating to import of gold dore bars mentioned therein, at the time of import, petitioner complied with condition Nos.34(a), 34(b) and 34(c) of the Customs Notification No.12/2012 dated 17.3.2012. 42. In that view of the matter, post import and permission by the 2nd respondent exempting from duty the said imports, action initiated by issuance of three show cause notices since not questioned in this petition, deserves to be taken to their logical end, which Sri.Kiran S.Javali, learned counsel for the petitioner is not averse and the petitioner is willing to participate and advance all such pleas as are available. 43. In the result, this petition is allowed in part. .....

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