TMI Blog2016 (3) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... ority to deal with. Therefore, Tribunal's order is set aside and it is open to the writ petitioners to prefer an appeal in accordance with law. - Decided in favour of revenue i.e. writ petitioners - MAT 372 of 2015 With CAN 2593 of 2015 - - - Dated:- 11-1-2016 - GIRISH CHANDRA GUPTA AND ASHA ARORA, JJ For the Petitioner : Mr. S.B. Saraf And Mr. K.M.Maiti For the Respondent : Mr. Durga Prasad Dutta And Mr. Souvik Sen ORDER 1. It is not in dispute that the writ petitioners availed the benefit of duty exemption/remission scheme, which appears to have been propounded in order to facilitate export of the finished fabrics, raw materials whereof might have been imported from abroad. The obligation of the importer is howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962. 4. The writ petitioner replied to the notice dated 11th July, 2011 stating as follows: In this connection we would like to confirm that the sample against shipping Bill No. 3450 dated 27.12.2002 has been drawn by you and the said shipping Bill has been finally assessed by your office as per photocopy attached. Here we would like to point out that we have exported garments made out of the same fabric that we imported under the said advance license and the export obligation has been 100% fulfilled. We are enclosing a copy of the certificate issued by the Office of the joint DGFT confirming the same. Under the above circumstances you are requested to kindly treat the matter as closed. 5. The cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial that had been imported on the basis of the advance licence obtained. There are only two scenarios possible: that the first petitioner had duly exported the goods and had complied with the conditions of the advance licence; or, the first petitioner had acted in derogation of the conditions appended to the licence and, as such, was liable to refund the duty exemption obtained. In the second case, it was mandatory for the department to issue a notice to the petitioner within five years of the date by which the export obligation ought to have been completed or within five years of the actual export of the last consignment. Since it is evident that no notice was issued by the department to the first petitioner within five years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the amount receivable upon forfeiture of the bond is not subject to any period of limitation. He added that in any case limitation is a mixed question of law and fact which the learned writ court should not have entertained regard being had to the fact that it was not disputed by the writ petitioners that he had misrepresented that the goods imported had in fact been exported and the truth came out after the test report was received. The correctness of the test report was not even disputed in the reply to the showcause notice which is a pointer according to him to show that the revenue was defrauded of the sum of ₹ 20,21,378/-. There can be according to him an issue as to whether the claim for interest is tenable but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival submissions advanced by the learned advocates. We are of the opinion that there appears to be at lest prima facie some substance in the submission advanced by Mr. Saraf that the claim for ₹ 20,21,378/- arose out of forfeiture of the bond. 13. Therefore, the order under challenge cannot be sustained. Whether the claim is barred by limitation? Whether the importer in fact made any misrepresentation? Whether the goods exported contained 98% of cotton are questions of fact which should better be left with the appellate authority provided under the statute. The views expressed herein are for the purpose of dismissal of this appeal. They shall not stand in the way of disposal of the appeal in accordance with law. To be more specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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