TMI Blog2005 (10) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... that on 16-2-1994 an advance licence was issued by the licensing authorities at Delhi permitting the petitioner to import duty free raw materials amounting to Rs. 22,82,803/- with corresponding export obligation as more particularly set out in the licence. The said licence was valid for 12 months. The port of registration mentioned in the licence for the purpose of imports was the port at Bombay. The said licence was duly registered at the Customs House at Bombay. 3. It is the case of the petitioner that before utilisation of the said licence, the petitioner applied to the Licensing authorities at Delhi for change of Port of registration from Bombay to New Delhi and the same was allowed by the licensing authorities at New Delhi. Thereafter, the petitioner imported raw materials under the said advance licence at New Delhi by air. The said raw materials were allowed duty free clearance as per Notification No. 203/92-Cus., dated 19-5-1992 under the above value based advance licence. On fulfilment of the export obligation the petitioner applied for discharge of bond/legal undertaking alongwith the requisite certificate from the Range Superintendent, Central Excise, NOIDA regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Customs at Mumbai some time in January, 2001 and explained the facts. It is the case of the petitioner, that the learned Commissioner agreed to close the file on submission of the relevant papers. Accordingly, the petitioner submitted all the requisite documents to show that the imports/exports under the advance licence has been effected from Delhi and that on fulfilment of the export obligation, the licensing authorities at New Delhi have discharged the bond/legal undertaking given by the petitioner under the aforesaid advance licence. The petitioner was under the impression that in the light of the documents furnished, the demand raised by OIO dated 30-10- 2000 would not be enforced. 8. However, by a letter dated 25-7-2003 the customs authorities at Bombay once again called upon the petitioner to pay Rs. 42,88,416/- with penalty of Rs. 4,00,000/- as per the OIO dated 30-10-2000 within a period of 3 weeks, failing which recovery shall be initiated in terms of provisions of Section 142 of the Customs Act, 1962. 9. By a letter dated 13-8-2003, the petitioner once again placed all the facts on record and requested for withdrawal of the notice as the liability under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bills of entry evidencing import or raw materials under the aforesaid advance licence dated 16-2-1994 at the cargo terminal, IGI Airport, New Delhi. (c) Copies of 27 shipping bills to show that the export has been effected from the cargo terminal IGI Airport, New Delhi in fulfilment of export obligations under the said advance licence dated 16-2-1994. (d) Extracts from the DEEC book to show that the raw materials under the advance licence dated 16-2-1994 have been imported under the supervision of the Customs authorities at New Delhi. (e) Extracts from the DEEC book to show that in fulfilment of the export obligation under the advance licence dated 16-2-1994, the exports have been effected under the supervision of the Customs authorities at New Delhi. (f) Certificates issued by the Central Excise authorities at NOIDA, Delhi to the effect that the petitioner has not taken any benefit under Rule 56A/57A of the Central Excise Rules, 1944 in respect of the goods imported under advance licence dated 16-2-1994. (g) Copy of the redemption certificate dated 14-2-1997 issued by the licensing authorities, New Delhi to show that on fulfilment of the export obligations under advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 1992-97, counsel for the revenue vehemently argued that once the advance is registered at Bombay, imports under the said licence could be made only through the port at Bombay and it was not open to the licensing authorities at New Delhi to change the port of registration from Bombay to New Delhi. He submitted that in the absence of any documents to show that no input stage credit has been availed under Rule 56A/57A of the Central Excise Rules, the benefit of Exemption Notification No. 203/92 dated 19-5-1992 was not available to the petitioner and, therefore, the Commissioner of Customs at Bombay was justified in demanding the duty from the petitioner in respect of the goods cleared under the advance licence dated 16-2-1994. 17. We have carefully considered the rival submissions. 18. As regards the preliminary objection relating to the maintainability of the Writ Petition, it is well established in law that when an appeal is dismissed on the ground that the delay in filing the appeal is not condoned, the doctrine of merger does not apply and the validity of the order impugned in the appeal can be challenged independently, even after the dismissal of the appeal. [See Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad no jurisdiction to change the port of registration from Bombay to Delhi is without any merit because, firstly, interpretation of the licensing provisions is left to the licensing authorities and it is not open to the customs authorities to question the same. Secondly, even if the advance licence dated 16-2-1994 was registered at Bombay, in the absence of any import of goods through the Bombay port, the Commissioner of Customs, Bombay could not have confirmed the demand against the petitioner. Even the show cause notice issued to the petitioner did not contain any particulars regarding the alleged duty free clearance of goods under the advance licence dated 16-2-1994 through the port at Bombay and, therefore, the demand raised against the petitioner cannot be sustained. 21. Moreover, in the present case the petitioner had furnished documentary evidence to establish that the port of registration mentioned in the licence has been changed from Bombay to Delhi by the licensing authorities at New Delhi. The petitioner has also furnished documentary evidence to show that as per the amended licence, the petitioner had effected imports and exports through the customs port situated at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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