9911796707
TMI Blog2019 (7) TMI 1541X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962 (Act). The impugned notices in all these petitions seek benefit of Customs Notification No.46/11 dated 1st June, 2011 in respect of import of Tin Ingot imported from Malaysia. The respondent has filed its affidavit in reply in Writ Petition No.2491 of 2018 and state that it be treated as common response to all the four petitions. 2. It is agreed between the parties that Writ Petition No.2831 of 2018 be taken as the lead petition for the purposes of reciting facts. It is further agreed between the parties that the view taken by us on the facts and the law in Writ Petition No.2831 of 2018 would equally apply to the other three petitions. 3. The petitioner in Writ Petition No. 2831 of 2018 was issued a Show-cause notice dated 30th Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the content. However, as the same was not forthcoming, in terms of Rule 17 of the rules of origin (No. 189/2009) the Officers of the DRI visited Malaysia for verification at MSC and found that RVC content is less than 35%. Thus, the Government of India stated that the data submitted by MSC to the Ministry of Industrial Trade and Industry (MITI) Malaysia to obtain the Country of Origin Certificate (COC) was not correct. The same was even communicated to MITI Malaysia and also the Government of Malaysia. The notice further alleges that the petitioners had not exercised due diligence and proceeded to claim exemption on fraudulently obtained Certificates. 5. Mr. Nankani, learned Senior Counsel for the petitioners invited our attention to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itral Tribunal. This by the Government of India invoking the DSM. Therefore, till such time, the dispute is not resolved under Article 24, the certificate which has been issued by the MITI continues to be a binding certificate and the Customs Authorities cannot ignore the same. It is submitted that even though, the Rules issued under Notification No.189/2009 are identical to Annexure D of the Treaty save and except, the fact that the Article 24 as provided in the Treaty, is not found in the Rules of origin as set out in Notification No.189/2009 dated 31st December, 2009. Nevertheless, it is submitted that, while interpreting a municipal law, the Treaty agreement between the two countries have to be taken into account and read into the munic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erential treatment could be denied by invoking Rule 16A of the Notification No.189/2009. In further support, he placed reliance upon a communication dated 12th July, 2018 addressed by the CBIC to the Malaysian Authorities wherein the board has informed the Malaysia Authorities that the justification provided by the exporter i.e. M/s. MSC in support of the certificate issued by the appropriate Authority i.e. MITI were not found reasonable and, therefore, not acceptable. Therefore, in the aforesaid circumstances, it was submitted that the adjudication of the show-cause notice is an empty formality as at the highest level, the issue stands concluded against the Petitioner. Therefore, this Court should exercise its writ jurisdiction and quash t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner's contentions. The various communications of the CBIC which have been referred to by the Petitioner as creating an apprehension in the mind of the petitioner that the adjudication proceedings would be an empty formality, as the CBIC has already taken a view against the petitioner is not justified. The view taken by CBIC is only a prima facie view, in having directed the authority to issue a show cause notice. This only to consider whether the prima facie view is correct or not after getting the response from the petitioner. It is the show-cause notice which has been issued to the petitioner and it is the response of the party to the show-cause notice which would determine the fate of the show-cause notice. Moreover, the prim ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
