TMI Blog2017 (4) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the machine, but, it shall be retained by them in safe custody - petition allowed - decided in favor of petitioner. - Writ Petition No. 3629 of 2017 - - - Dated:- 3-4-2017 - S. C. Dharmadhikari And Prakash D. Naik, JJ. Mr. Prakash Shah, a/w. Mr. Ajay Singh and Mr. Jas Sanghavi, i/b. M/s. PDS Legal, Advocate for the Petitioners Mr. Pradeep S. Jetly, Advocate for the Respondents ORDER P. C. By this petition, under Article 226 of the Constitution of India, the petitioners are seeking a writ of mandamus or any other writ, order or direction in the nature thereof, ordering and directing the respondents to forthwith remove the seal placed by them on the petitioners factory premises on 21st March, 2017, allow free access to the factory premises and unconditional use of the machine, which has been seized by the respondents. 2 This Writ Petition was mentioned urgently and we allowed the above request on 29th March, 2017. 3 After hearing both the sides, briefly, on 29th March, 2017, we passed the following order: 1. This writ petition challenges an action and which according to the Petitioners' counsel Mr.Shah is of sealing of premises. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner-Firm. The Union of India, the Commissioner of Customs (Preventive), the Deputy Commissioner of Customs (Preventive) and the Superintendent of Customs are the Respondents before us, because the petitioners claim that, in the normal course of business, they had applied for a duty free import of second-hand offset printing machine. They applied to the Director General of the Foreign Trade under the EPCG Scheme. This Scheme, stated as Export Promotion Capital Goods Scheme , is a part and parcel of the Foreign Trade Policy for 2009-2014. 6 The petitioners claim that an EPCG license was issued on 18th August, 2011 for import of this machine and free of Customs Duty. There was an export obligation, which was required to be fulfilled. Reliance is placed on the Condition Sheet attached to the EPCG license; especially, Condition No.4 thereof, which is part and parcel of this license. That condition reads as under: 4. Authorization holder may also discharge export obligation, indicated in Para 2 above, by way of direct export/through third party export. In all such cases, name of the Exporter, name of EPCG authorization holder, date and number of EPCG authorization should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Promotion Capital Goods Scheme at zero duty , claiming exemption under paragraph 5 of the Foreign Trade Policy 2009-14, read with Notification No.102/2009-Cus dated 11th September, 2009. It was a facility available to an exporter/manufacturer, subject to fulfillment of the export obligations. Further, the Notification obliges parties like the petitioners to use the capital goods imported, as above, and fulfill its export obligations. One M/s. Ridhhi Enterprises, in collusion with the petitioners, showed third party exports in their Shipping Bills filed by them on behalf of the petitioners. The petitioners were successful in obtaining clearance of these export obligations and filed a certificate evidencing export obligations being discharged, namely, Export Obligation Discharge Certificate, (for short, EODC ), and on the basis thereof, they have got the Bank Guarantee and Bond duly cancelled. Now, the fraud has been exposed during the investigations. The petitioners are, prima facie, found guilty of this fraud and having cheated the revenue. The Revenue must be allowed to unearth the fraud completely. 14. For the present, only duty obligation and payment thereof to the tune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Book of procedure. Thus, the Foreign Trade Development Officer makes this endorsement and duly forwards a copy thereof to the Assistant Commissioner of Customs EPCG Cell. 19 In turn, on 4th December, 2014, the Office of the Commissioner of Customs (Export), Jawaharlal Nehru Custom House, Sheva, Tal. Uran, Dist. Raigad, by relying upon the communication from the Foreign Trade Development Officer, duly cancelled the Bank Guarantee executed by the petitioners. The Bond in the sum of ₹ 17,85,500/- executed by the petitioners also stood cancelled. The endorsement made in this communication, which is appearing on page No.18 of the paperbook, is that, if it is discovered later on that, any of the information or documents submitted by the petitioners are incorrect, manipulated or fraudulent, then, in that event, the petitioners shall be responsible for all its consequences, including payment of full amount of customs duty foregone plus interest @ 18% p.a. from the date of importation of first consignment . 20 From the letter dated 4th December, 2014 till the issuance of Search Warrant dated 21st March, 2017 and from the investigation carried out in the month of November and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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