9911796707
TMI Blog2019 (11) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner has set-up a manufacturing facility at Tiruttani, Tamil Nadu for production of large diameter tubes. Importation of capital goods, in pursuance of the said project had commenced in November, 2012 and got completed in the year 2014. For setting up the said plant, the petitioner imported various capital goods. Initially, five shipments of plant and machinery had landed at Chennai seaport and were further transshipped to the Inland Container Depot (ICD) at Arakkonam. At the ICD - Arakkonam, the goods were initially stored in Customs Bonded Warehouses and subsequently, they were cleared on payment of applicable duties by filing Ex- Bond Bills of Entry. At the time of clearance of the goods, the petitioner availed the benefit of Customs Notification No.104/2009 - Cus dated 14.09.2009. The said Notification was issued by the Central Government to implement a scheme called "Status Holder Incentive Scheme", under which, duty credit scrips are issued to manufacturer exporters, who are status holders as an export promotion measure. The capital goods imported against such scrips are exempted from payment of Custom duties subject to the condition that the said scrip is produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 25.10.2018, this Court remitted the matter back to the second respondent with a specific observation that five import transactions already done also deserve to be considered favorably based on the representation submitted by the writ petitioner. Thereafter, the second respondent passed the present impugned order, refusing to extend the benefit of Notification No.104/2009 dated 14.09.2009 in respect of the above said five Bills of Entry, only on the reason that ICD - Arakkonam was not a notified port at the time of the subject matter import and that the power conferred on the Commissioner under the said Notification, to extend the benefit in respect of other ports, could be in respect of prospective import and not in respect of import made already. 3. The respondent filed a counter affidavit wherein, it is stated as follows: Any permission is prospective in nature and the relevant case laws have been referred to in this regard as to why the request of the petitioner could not be considered retrospectively. ICD - Arakkonam was not included for clearance of goods under SHIS Scheme in the Notification No.104/2009 at the relevant point of time as it was not in existence. Once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported/exported. 6. Heard both sides and perused the materials placed before this Court. 7. The point for consideration in this writ petition is as to whether the petitioner is entitled to the benefit of exemption Notification No.104/2009 dated 14.09.2009, which was subsequently amended by issuing various Notifications time to time. The dispute between the parties is in respect of five Bills of Entry referred to supra, through which, the petitioner imported some capital goods for their manufacturing facility located at Tiruttani, Tamil Nadu. It is stated that those goods were originally landed at Chennai seaport and were further transshipped to the Inland Container Depot (ICD) at Arakkonam. It is also not in dispute that the petitioner had cleared the goods only from ICD - Arakkonam. Through the Notification No.104/2009 dated 14.09.2009, status holder incentive scheme was introduced, under which duty credit scrips are issued to the manufacturer exporters as export promotion measure and the capital goods imported against such scrips are exempted from payment of custom duties. Therefore, the petitioner by taking advantage of Notification No.104/2009 submitted the SHIS scrips for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the respondents have not furnished any candid reason for the purpose of non-inclusion of the ICD, Arakkonam in the list of scheme, the case of the writ petitioner deserves consideration on the hands of the respondents themselves." 9. It is an admitted fact that the said order of the Writ Court has not been put to challenge by the Revenue and on the other hand, it is stated that the present impugned order is passed as a consequence and compliance of the order passed in the above writ petition. 10. A careful perusal of the the said order of the Writ Court, which has become final, more particularly, the observation made under the paragraph No.11 would undoubtedly indicate that this Court, specifically directed the second respondent to consider the five import transactions already done by the petitioner favorably based on the representation submitted by them. In other words, this Court instead of issuing a positive Mandamus, directed the second respondent to issue such appropriate order favorably. 11. However, the second respondent has chosen to pass the present impugned order and rejected the benefit only by stating that port ICD - Arakkonam was not included in the exemption Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed at paragraph Nos.3, 22, 23 and 28 as follows:- "3. Shorn of all unnecessary details, the fact of the matter is as under : The Respondent herein is an Association of the cultivators of tobacco. An incentive scheme was introduced by the Government of India in the year 1997 as regard export and import in terms of the Duty Entitlement Pass Book Scheme, whereby and whereunder 2% incentive was provided out of the export carried from the notified container depots. 'Guntur' was not mentioned in the notification dated 7.4.1997 issued pursuant to or in furtherance of the said policy decision which came into force with effect from 1.4.1997. In terms of the said notification exemption was granted from payment of additional duty leviable under Section 3 of the Customs Tariff Act to those who had been issued a Duty Entitlement Pass Book by the Licensing Authority. Sub-clause (iv) of Clause (2) of the said notification states : "(iv) The said Duty Entitlement Pass Book shall be valid for twelve months from the date of issue, for import and export only, at the port of registration which shall be one of the sea ports at Mumbai, Calcutta, Cochin, Kandla, Mangalore, Marmgoa, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication, the Central Government only intended to rectify a mistake and, thus, the same will have retrospective effect and retroactive operation. 28. The doctrine of fairness also is now considered to be a relevant factor for construing a statute. In a case of this nature where the effect of a beneficent statute was sought to be extended keeping in view the fact that the benefit was already availed of by the agriculturalists of tobacco in Guntur, it would be highly unfair if the benefit granted to them is taken away, although the same was meant to be extended to them also. For such purposes the statute need not be given retrospective effect by express words but the intent and object of the legislature in relation thereto can be culled out from the background facts." 15. Since the above objection regarding the retrospective operation of the Commissioner's power is answered by the Apex Court in the above said decision, I am of the view that the contention of the Revenue in this aspect, is also liable to be rejected. Even otherwise, as I already observed supra, when this Court has specifically directed the second respondent to consider the case of the petitioner favorably, unle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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