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M/s Rajesh Exports Ltd. Versus Chairman, Central Board of Excise And Customs, Commissioner of Customs

2016 (2) TMI 860 - KARNATAKA HIGH COURT

Import of old dore bars with impurity - claim of benefit of concessional rate of customs duty - the Central Government granted exemption from payment of duty in excess of "BCD NIL and CVD @ 2% ad valorem, for imports upto 20.01.2013 and in excess of BCD NIL and CVD @ 4% for imports w.e.f 21.01.2013 on gold dore bars having gold content not exceeding 95% vide Sl.No.318 of Notification No.12/ 2012 dated 17.03.2012, subject to fulfillment of condition No.5 and 34 of the said notification by the imp .....

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e Perth Mint, a government 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 .....

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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 gold dore bars from Australia and the mines from Australia. - 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 impo .....

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e and exporter of gold jewellery, claims to have imported gold dore bars with impurity from M/s Perth Mint, Australia, supplied by gold mines situated in Australia and on import, satisfied condition Nos.34(a), 34(b) and 34(c) of Notification No.12/2012 dated 17.03.2012, Annexure-A, took it to its refinery at Uttarkhand during the year 2012-13. A certain amount of gold dore bars when imported and received at Delhi Customs, the 2nd respondent/"Proper Officer", for the purpose of The Cust .....

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on its refinement and put into manufacture for jewellery, attracts excise duty, in other words, customs duty concession is extended only to gold dore bars. According to the petitioner, it is not for the first time during 2012-13 such imports were effected but in fact, for several years in the past imports were done, prior to Notification 12/2012 dated 17.03.2012, from M/s Perth Mint, Australia, and other parts of the world. It is further asserted that Perth Mint is a Government Company establish .....

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, 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 g .....

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petitioner and the mining company stood completed and had no authority over the supplier to demand the packing list of the mining company, while asserting that the packing list of the Perth Mint, since furnished with each shipment certifying each list to be in accordance with the packing list of the mining company which produced the goods, it is legally barred from disclosing the name of the mining company and requested the 2nd respondent to accept the same which complies with condition Nos.34( .....

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r any other appropriate writ, order or direction and quash letter dated 18.06.2013 issued by the respondent No.2 bearing C.No.VIII(12)/I&g/Gr.III/Ch-71/ Misc.34/2011/1565/18/6/13 (Annexure-G) as illegal and void ab initio. b. Issue a writ of mandamus or any other appropriate writ, order or direction declaring that condition No.34(b) and 34(c) of Notification No.12/2012 - Customs dated 17.3.2012 (Annexure-A) has stood complied by virtue of packing list and assay certificate of The Perth Mint. .....

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s of "BCD NIL and CVD @ 2% ad valorem, for imports upto 20.01.2013 and in excess of BCD NIL and CVD @ 4% for imports w.e.f 21.01.2013 on gold dore bars having gold content not exceeding 95% vide Sl.No.318 of 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 req .....

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rter 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 above." 7. Exemption notifications are said to have been issued under the delegated legislative powe .....

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der Notification No.12/2012 dated 17.03.2012 before the Customs Authorities at New Delhi self certifying compliance with condition Nos. 34(a), 34(b) and 34(c) of the notification which, upon verification of documents, 2nd respondent felt it proper to seek clarification from Central Board of Excise and Customs, headed by the 1st respondent over admissibility of such documents for grant of exemption benefit. 8. It is stated that the Directorate of Revenue Intelligence, Ahmedabad Zonal Unit also in .....

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were in accordance with packing list issued by mining company by whom they were produced; and (ii) gold dore bars imported by them were not accompanied with assay certificates, which were issued by the mining company by whome they were produced or the laboratory attached to it. 9. At paragraph 2.6, it is stated that the Central Board of Excise and Customs issued clarification vide letter F.No.354/4/2012-TRU (Part-I), dated 15.04.2013 as follows: "2……….it is noted that .....

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0% 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 .....

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ence to orders in Special Leave Application Nos.3282/1999 and 3279/1999 which was transferred to the High Court of Madras at Chennai for disposal and other Judgments. It is further contended that petition was not maintainable since petitioner has an alternative and efficacious remedy in the light of the show cause notice on the issue relying upon several reported opinion of the Apex Court. 12. At paragraph 5, the 2nd respondent extracted the statement of Chairman of the petitioner Company more a .....

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he goods which in the opinion of respondent No.2, in the absence of other supporting evidence, fell short of meeting statutory condition No.34(a) of the exemption notification. 13. At paragraph 5.2, respondent No.2 stated that chambers of Commerce and Industry (C.C.I) of Western Australia (Inc.) (C.C.I.)'s suo motu certification was not clear as to in what context, with what authority and for what purpose the certificate was issued. In the light of the statement in the certificate that " .....

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th Mint and therefore, certificate was of no use in the view of two different packing list of mining company, hence the certification lost significance. 14. At paragraph 5.3, it is stated that condition No.34(b) of the notification stipulates that gold dore bars should be imported in accordance with the packing list issued by the mining company by whom they were produced, in response to which importer has produced list of goods in accordance with packing list issued by the Australian Mining Comp .....

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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 .....

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, the consignor, unsupported by evidence makes it impossible to accept the same on face value unless supported by "some supporting evidence". It is pointed out that Central Board of Excise and Customs in their letter dated 15.4.2013 opined that for testing whether the condition was met or not, the 2nd respondent may obtain the 'packing list' issued by the mining company, compare and co-relate with the 'packing list' issued by the Perth Mint. Therefore, it is stated, sta .....

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irements of the Notification. At paragraph 6, while making reference to condition No.34(c) of the Notification, it is stated, the best evidence that the petitioner has come up with is a self claim by Perth Mint that they are a laboratory attached to/appointed by the mining companies with not an iota of evidence in support. The 2nd respondent has extracted the claims put-forth by Perth Mint thus: "(i) Perth Mint merely claims to be having 'very close contractual relationship with all gol .....

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s between the Perth Mint 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, responden .....

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ption, 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 only if the laboratory is attached to the mining company. 18. At paragraph 6.4, it is stated that admittedly Perth Mint is a Government owned laboratory/refinery established under an Australian Parliament, and any mining company can enter into a contract with them and g .....

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d to/appointed by" the mining company, the ambiguity is unacceptable for granting exemption under the notification. 19. At paragraph 6.5 a reference is made to condition No.34(c) of the Notification reiterating the question of Perth Mint being attached as a laboratory to the mining company and declining to accept the 'list of goods' prepared by the Perth Mint. 20. At paragraph 6.8, the 2nd respondent noticed that the statements made by the petitioner relating to engraving of serial .....

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wherein the 'packing list' and 'assaying certificate' was issued by mine itself and therefore, declined to accept the plea of the petitioner that the Assay certificate issued by Perth Mint was true and further that the non-disclosure of the mining companies by the Perth Mint is incorrect. It is in this context the 2nd respondent declined to accept the certificate issued by Perth Mint although it was admittedly a Government laboratory/refinery. 22. At paragraph 9, it is stated tha .....

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f 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.12/2 .....

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hed by the certificate issued by the Perth Mint and Chambers of Commerce and Industry, Australia. The Chamber of Commerce, it is said, is a trade body that issues certificate for Australian import, hence Perth Mint was able to confidentially produce the certificate to the Officers of the Chambers of Commerce who inspected the records in detail and issued the confirmation letter. It is in these circumstances, it is further stated that the 2nd respondent ought not to have undermined or negated the .....

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asserted that it was baseless and unnecessary for the 2nd respondent to raise such basic points of understanding and point a finger at the significance of the certificate of Chamber of Commerce, demonstrating the futile attempt of the respondent to desperately disown the certificate of Chamber of Commerce. 24. The rejoinder to paragraph 5.3 of the statement of objections, it is stated that condition No.34(b) states that the "goods are imported accordance with the packing list issued by the .....

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rted are not along with and 'in accordance' with the 'packing list' issued by the mining company. Therefore, it was asserted that the 'packing list' of the mining company is not a prerequisite for import. Condition No.34(c) if read would indicate that an Assay certificate 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 i .....

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e 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 dore bars exported by us and tra .....

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tances of the case of the petitioner. 27. The allegation in paragraph 7 of the statement of objections that BCD Resources NL, a mining company which issued the packing list/Assay certificate in favour of M/s MMTC PAMP (I) Limited which had imported gold dore bars under the bill of entry No.8424513 dated 6.11.2012 at Air Cargo Complex, Delhi, at paragraph 41 of the rejoinder, it is stated that the said mine in Australia was no longer in existence and closed much before the date of entry. (learned .....

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a mining company in Australia had closed down its business. It is lastly stated that if regard is had to the further certificate issued by Perth Mint, Annexure-H read with the letter of confirmation, Annexure-J of the Chamber of Commerce, Australia and the clarification issued by the 1st respondent in its letter Annexure-D, petitioner had fulfilled conditions 34(a), 34(b) and 34(c) of the Notification No.12/2012 dated 17.3.2012 for import of gold dore bars. The certificate of origin, Annexure-K .....

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s 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 .....

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e proceeding for fresh consideration, observing that it was difficult to uphold the view of the learned Single Judge that this court had no territorial jurisdiction to entertain the petition. 31. On 19.8.2015 the following order was passed: "Learned counsel for petitioner submits that the lis is over clause 34(b) of the notification dated 17th March 2012, Annexure- A in relation to "in accordance with the packing list" issued by the Mining Company by whom the Gold Dore Bars were p .....

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ed with a show cause notice, calling upon him to furnish the packing list of the mining company, to which petitioner responded, seeking copies of certain documents which the respondents are willing to make over and in that regard, would file an affidavit so as to finally decide the lis. In order to extend an opportunity of fair hearing to the respondents, so as to enable it to file an affidavit over the details of the certified copies of records which would be made available to the petitioner an .....

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.No.2/2015 is filed by the writ petitioner for a direction to the respondents that the documents of the petitioner are in the direction of compliance with condition No.34(a), (b) and (c) of the Notification No.12/12 in the matter of import of Gold Dore Bars from Perth Mint and the same be allowed. 2. According to the applicant the order dated 7.11.2014, directed completion of the adjudication pursuant to the show cause notices, which when considered, on 16.11.2015 an order was passed directing c .....

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ing 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 .....

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permit the petitioner to import Gold Dore Bars from Perth Mint. 4. It is no doubt true that in the order dated 16.11.2015, while making reference to the proceedings pursuant to the show cause notices, the submission of the learned Additional Solicitor General that copies of documents sought for by the petitioner would be made available hence the authority was directed to conclude the proceedings by 30.11.2015. 5. Today, learned counsel for the petitionerapplicant submitted in the morning session .....

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s and circumstances, it is apparent that there is overlapping of enquiry by the authorities. On the one hand, pursuant to Annexure 'D' clarification of the Director (TRU) to the Commissioner (I & G) stating that the Commissioner having recorded satisfaction of compliance with the clauses 34(a) (b) and (c) nevertheless, on 15.4.2013 Annexure 'G' letter calls upon the petitioner, on 18.6.2013, to submit packing list from the "mining company" in respect of all past imp .....

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o furnish packing list from Mining Company, which the Perth Mint declined 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 nonfulfi .....

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ccompanied 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' letter as well as the contents of the show cause notices of the Directorate of Revenue Intelligence apparently overlap each other. The effort of the learned counsel for the petitioner is to point out that a decision on Annex .....

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able by EMail on 17.11.2015 the hard copies of which made available today in Court, would be considered by the Directorate of Revenue Intelligence. 10. At this stage, since the petitioner has not called in question the show cause notices, it is appropriate to direct the petitioner to file his explanation to the show cause notices on the basis of the hard copies made available to him today, through its learned counsel, and place a copy of the same before this Court by the next date of hearing i.e .....

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his client and it is for the first time at 2.30 p.m. it is made known of hearing of the matter at 11.00 a.m., it is but appropriate to direct the authorities to re-fix yet another date after 25.11.2015 for personal hearing. Re-list for further orders on 25.11.2015." and on 25.11.2015 the following order was passed: "I.A.No.3/2015 is filed for extension of time for concluding the proceeding initiated by Directorate of Revenue Intelligence, while, I.A.No.4/2015 is for an order recording .....

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d 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- .....

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962. 4. The Petitioner was furnished with the documents as sought by him in his letter dated 19.02.2015. The Petitioner has now filed Interlocutory Application in I.A No.3/2015 seeking furnishing of other documents as explained in I.A No.3/2015. All the documents as sought in I.A No.3 has been furnished to the Petitioner through email dated 30.11.2015. A copy of the email communication is produced herewith and marked as Document No.4. 5. In view of the Show cause notice issued to the Petitioner .....

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on proceedings would be completed on the basis of reply submitted by the petitioner within the time to be stipulated by this Hon'ble High Court." 33. In the light of the affidavit dated 26.8.2015 filed on 29.8.2015 of Ms. Sailaja Ray Baruah, Commissioner of Customs (Import), New Delhi and the memo dated 2.12.2015 (supra) coupled with the submission of the learned Addl. Solicitor General for the respondents, the enquiry would be held by clubbing the three show cause notices dated 15.9.20 .....

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ion No.12/2012, it is seriously argued that petitioner is entitled to the relief in the light of the admission of the respondents that on the date when the imports were permitted there was implicit compliance with the aforesaid 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 s .....

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espondent 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 condition Nos.34(a), (b) and (c) of the Notification No.12/2012 dated 17.3.2012 w .....

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is admittedly in Australia as is demonstrated by Annexure-B, list of goods and Annexure-C Assay certificate issued by Perth Mint, as clarified in the letter Annexure-H and the certificate of the Chamber of Commerce, Australia, Annexure-J, as well as the certificate of origin, Annexure-K issued by the Perth Mint, Australia, certifying that gold dore bars imported by the petitioner are of Australian origin. Secondly, the requirement is that the shipping of the goods is from a country which produce .....

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s. 37. Apparently the material on record establishes compliance with condition No.34(a) of the Notification No.12/2012. 38. Condition No.34(b) reads thus: "Goods are imported in accordance with packing list issued by the mining company by whom they were produced." A reading of the aforesaid condition requires two fold compliance: firstly, goods must be imported, which the petitioner has done. Secondly, the goods should be in accordance with the 'packing list' issued by the mini .....

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ot 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 & .....

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th condition No.34(b) of the Notification, permitted the import. 39. Condition No.34(c) reads thus: "34 (c). the 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;" Compliance of this condition can be broken down to three aspects. Firstly, there must be an assay certificate deta .....

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mining company in Australia, exfacie, coupled with Annexure-H, letter of the Perth Mint clarifying that there is an embargo in the matter of furnishing the names of all the gold mines in Australia which produced gold dore bars, hence non furnishing of the name of the gold mine where the gold dore bars imported by the petitioner were, in fact, mined, in the circumstances is not within the control of the petitioner. The certification made by the statutory authority in the country of origin i.e. Au .....

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t 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 gold dore bars from Australia and the mines from Australia. 40. It is also useful to notice that there is no dispute that petitioner is an importer of gold dore bars. Even in the past, i.e., prio .....

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