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Mr. V.A. Ramash, Mrs. Kalpana Ramash Versus The Assistant Commissioner of Customs, The Assistant Commissioner of Customs (EPCG)

2016 (7) TMI 589 - MADRAS HIGH COURT

Attachment of property to recover dues - Personal property belongs to the Director and wife of the directors of the company - company failed to fulfill the conditions of export obligation under the EPCG licence - The contention raised by the petitioner is that the bond was executed by the company, however, due to torrential rains in 2003, water entered the petitioners' factory premises, all the records documents were completely destroyed and the petitioners have no documents relating to the subj .....

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company from the Directors in their personal capacity, the impugned notice of attachment should be held to be bad in law. Therefore, the respondents having admitted that the dues are payable by the company, then it goes without saying that the recovery could be made only against the company and not against the Directors in their personal capacity. - Decided in favor of petitioners. - W.P.No.32997 of 2015 - Dated:- 11-7-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr.S.Rahunathan For Responde .....

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roperty which is subject matter of the impugned attachment. The impugned notice states that the first petitioner is liable to pay a sum of ₹ 5,44,291/- along with interest as applicable being the amount of Government dues payable as per the terms of the order-in-original No.15014/2011, dated 07.03.2011, passed by the second respondent under Section 28(1) and 28AB of the Customs Act, 1962. 3. The facts, which are necessary for disposal of the Writ Petition, are that the petitioners are Dire .....

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naging Director of the company undertaking to fulfil the export obligation as per the exemption notification. Consequent upon the failure to fulfil the export obligation, show cause notice dated 08.01.1998 was issued to which there was no response and ultimately, an order was passed by the adjudicating authority, dated 07.03.2011. The amount ordered to be paid under the said order, is now sought to be recovered as Government dues by attaching and bringing for sale, the properties owned by the pe .....

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mitted that the impugned proceedings is in violation of principles of natural justice, as no notice of proceedings was issued to the petitioner prior to serving impugned notice of attachment. Further, it is submitted that the impugned notice of attachment attaching the personal properties of the petitioners is wholly without jurisdiction and the petitioners cannot be made personally liable for the alleged dues of the company. The respondent ignored the fact that the company is a separate legal e .....

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Rules have to be followed, which includes issuance of notice in terms of Rule 4, which has not been complied with. Further, it is submitted the bond which has been referred to by the Department, has been signed by the first petitioner in the capacity of Managing Director of the company and the respondents cannot proceed against the petitioners' personal capacity for the alleged dues payable by the company. Further, an affidavit has been sworn to by the first respondent, dated 27.11.2015, sta .....

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rjee vs. UOI & Ors., reported in (2012) 171 Comp Cas 311 (Bom), and the decision of the Hon'ble Division Bench of the Delhi High Court in the case of Anita Grover vs. Commissioner of Central Excise & Ors., reported in 2013 (288) ELT 63 (Del). 6. The learned Senior standing counsel appearing for the respondent submitted that the petitioners-importers did not respond to the show cause notice and personal hearing and deliberately evaded the submission of export obligation discharge cert .....

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r had executed the Bond binding themselves to pay the duty with interest on demand in case of failure to fulfil the conditions of the notification i.e., non-fulfilment of Export Obligation. Hence, the petitioner's arguments that the order of adjudication is without jurisdiction and barred by time limit are legally incorrect. It is further submitted that the respondents are acting within the purview of Section 140 of the Customs Act, which deals with 'Offences by companies' and every .....

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ty of the petitioners and is not an asset owned by the company. The petitioners are not the importers, but it is the company, which imported the capital goods by availing the benefit of an exemption notification under the EPCG scheme. The company bound itself to the department by executing a bond assuring compliance of the conditions contained in the licence. The importer was under obligation to fulfil the export obligation within the time permitted which admittedly has not been done. This resul .....

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om the counter whether the notices were indeed served on the company or in the absence of service on the company whether the service was effected in accordance with the Rules. 8. Be that as it may, it has to be seen as to whether the amount which has become due and payable pursuant to the order-in-original, dated 07.03.2011, could be recovered from the petitioners by proceedings against their personal property. The answer to this question should be in the negative. This view is supported by the .....

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