TMI Blog2001 (3) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... s. of pagers, due to international Business situation (Asian Currency Melt Down) cancelling export orders. They requested the Customs Authorities permission to Re-export the parts left back, which was refused. By letters dated 17-11-1999 and 23-11-1999, they sought from the Customs details of their liability to pay duty and interest on their non-fulfilment of the export obligation. However, a summon was issued on 1-12-1999 to them, regarding the facts about the import under the said licence which was replied to vide letter dated 1-12-1999. 2. A show cause notice was issued by the Assistant Commissioner of Customs, Bangalore dated 5-2-2000 demanding duty on the full licence value amounting to Rs. 4,07,44,992/- which was replied on 21-2-2000, pointing out the facts that the demand made was not correct, since an amount of Rs. 57,25,647/- and interest thereon, in respect of unutilised imported components has been paid, which was accepted by the said Assistant Commissioner, as intimated to him vide appellants letter dated 30-12-1999. This also intimated the final closure of export obligation as per para 7.28 of EXIM POLICY 1997-2000 and the related DEEC book which was duly endorsed. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner had issued a show cause notice dt. 5-2-2000, demanding the duty and on examining the plea of the appellants that for the very same Advance Licence, the Assistant Commissioner had accepted the payment of duty and interest on the amended export performance and discharged the Bonds, therefore, there was no cause for the Commissioner to have taken cognisance of the very same non-fulfilment of export and issued this show cause notice dt. 8-4-2000 and the impugned order now in appeal. We find that Calcutta High Court in the case of Mahananda Bannerjee - 1997 (103) CRL (J) 3676 CAL in para 28 thereof have extracted and followed, this passage from "Law on Injunctions" by Lewis Spelling - "Where a court having jurisdiction and having acquired jurisdiction will usually refuse to interfere by issuing second injunction. There is no established rule of exclusion which would deprive a court of jurisdiction to issue an injunction because of the issuance of an injunction between the same parties pertaining to the same subject matter. And even where it is a case of one court having refused to grant an injunction, while such refusal does not exclude the another co-ordinate court of jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upees four crores seven lakhs fourty four thousand and nine hundred twenty two) was not levied in respect of the above Bill of Entry in view of Bond No. 514/3/98, dated 5-1-1998 executed by you under Notification 30/97-Cus., dated 1-4-1997 and whereas you have failed to fulfil the condition of export obligation laid down under the said notification...." Thus, we find that the Commissioner is finding to establish a distinction without a difference with the sole intention to uphold the act of his "Patrician Guards the Hqrs. Preventive Officers." The "intelligence gathering" by them has either failed to gather essential data of the Assistant Commissioner's actions initiated, or they have kept the same away from the Commissioner in their final analysis, and have got the notice issued. In both the cases, i.e. innocence of Assistant Commissioner's notice and proceedings or and suppression of the same, the proceedings by Commissioner are vitiated ab initio. We find, and reinforced in our view of the Commissioner being a captive of his Patrician Guards" the Hqrs. Preventive Officers, since he finds in para 22 of his findings - "....Their plea that they had voluntarily furnished all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been withdrawn, without giving a date for withdrawal of the same. The appellants have submitted that they have not received any order. The date of withdrawal was required to be mentioned. If the notice is withdrawn, the reasons for the same are not known, is it that the Assistant Commissioner has accepted the compliance of payment of duty and interest and then discharged even the bond? or has he found no reason for the issuance of his notice? Whatever, it may be, the Commissioner should not have proceeded to re-determine duty and interest, once Assistant Commissioner has withdrawn his notice for the same demand of duty and interest. If the Asst. Commissioner has withdrawn the notice on compliance of the demand of duty and interest, and finding no further short levy in the facts of the case and discharged the Bond, then course open for commissions was to go and review the order of withdrawal of the notice and file an appeal before the Commissioner (Appeals). The proceedure established by law has not been followed. Therefore, the order of again a confirmation of demand and interest vide this order cannot be upheld. (d) We have consideration the confiscation arrived at b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest have been duly discharged. We therefore, do not uphold the confiscation of the goods as arrived at by the Commissioner. Therefore, there is no cause to impose any redemption fine. The same is required to be set aside. (f) For negligence as arrived at by the Commissioner, we find none to exist, therefore, when bona fides of the appellant are found by us to exist, then the oft quoted decisions of the Supreme Court in Hindustan Steel Ltd. - [1978 (2) E.L.T. (J 159) (S.C.) = AIR 1970 SC 253], Akbar Baddruddin Jiwani - 1990 (47) E.L.T. 161 (S.C.), Jain Exports (P) Ltd. - 1990 (47) E.L.T. 313 (S.C.), D. Navinchandra Co. - 1987 (29) E.L.T. 492 (S.C.), B. Vijay Kumar - AIR 1987 S.C. 1794 which we follow to arrive at a finding that in the facts of the case when 'contumacious conduct' does not exist then penalty cannot be upheld. The learned Commissioner has also considered and taken into account the 'Trading House' status of exporter, that the appellants have and they have fullfilled export obligations and immediately after the investigation 'started' have paid the duty. He has taken a lenient view in determining the quantum of fine in lieu of confiscation and also penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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