R.K. Agrawal, J. - (1.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s J. S. Gupta and Sons, seek the following reliefs: "(i) issue suitable writ, Order or direction quashing the Order dated 5th January 2005 (Annexure -- XVIII to this writ petition) passed by the respondent No. 2; (ii) suitable writ, Order or direction quashing the Order dated 19th/20th April 2004 whereby the permission granted to sub-contract production to job work was cancelled; (iii) Suitable writ, Order or direction commanding the respondents to restore the facility of procuring goods without payment of duty forthwith; (iv) Suitable writ, Order or direction commanding the respondents to permit the petitioner to sub-contract the production on job work basis as was being permitted prior to the Order dated 19th/20th April 2004; (v) suitable writ, Order or direction restraining the respondent Nos. 2 and 3 from harassing the petitioner and prohibiting investigation against the petitioner; (vi) issue any other appropriate writ, Order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; and (vii) award cost of this writ petition to the petitioner."
(2.) Briefly stated, the facts giving rise to the present petition are as follows: The petitioner is a registered firm. It is a 100% Export Oriented Unit. According to the petitioner, it has been awarded for excellent performance for export by the Ministry of Commerce, Government of India. It had been granted letter of permission dated 15.12.2000 to set up a 100% Export Oriented Unit in terms of the EXIM Policy 1997-2002 framed by the Ministry of Commerce under the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as "the Foreign Trade Act"). According to the petitioner, under Section 5 of the Foreign Trade Act, the Central Government has framed EXIM Policy from time to time. Under the said policy, the Central Government provides various facilities to the exporters subject to certain conditions. Para 9.5 of Chapter XI of the EXIM policy 1997-2002 provided that the letter of permission issued to an Export Oriented Unit by the concerned authority would be considered as a licence for all purposes including procurement of raw materials and consumables either directly or through canalizing agency. Para 9.20 of the said Scheme provides for the facility of procurement of raw materials and export of finished goods to be exempt from the Central levies. The Central Government has issued a notification under Section 5-A of the Central Excise Act on 4.1.1995 exempting all the goods specified from payment of duty to the Units registered as Export Oriented Unit. Similar notification has been issued by the Central Government under Section 5 of the Customs Act. It is entitled as an Export Oriented Unit to obtain raw material/input free of customs and excise duties for the manufacture of the goods which are meant for export. As the petitioner has been granted letter of permission in terms of the EXIM policy 1997-2002, the petitioner had imported raw material and other items for being used in the manufacture of finished goods meant for export without payment of any duty, The said import has been made on furnishing a bond in the prescribed form.
(3.) According to the petitioner, on 2.1.2004 and 3.1.2004 the officers of the Central Excise Department, Meerut, inspected the premises on the presumption that it has been diverting the duty free material to other persons and pending investigation it was directed to pay an amount of Rs. 26,99,871.00 as revenue deposit which it had deposited under protest. Further, on 8.1.2004 a search was conducted in the premises of M/s Swati Non-Ferrous Pvt. Ltd., Thane (Maharashtra) and certain goods which were sent by the petitioner for job work, which the petitioner claimed to have sent under the permission granted by the Departmental Officers, were seized. The Commissioner, Customs and Central Excise, Meerut-II wrote a letter on 10.2.2004 to the Development Commissioner, Export Processing Zone, NOIDA, stating therein that on the basis of the intelligence information received to the effect that the petitioner was engaged in diverting the imported raw materials through its related firm M/s C. L. Gupta and Sons and also on the basis of the search conducted on 2.1.2004, necessary action be taken under the Foreign Trade Act for revocation/cancellation of the letter of permission issued to the petitioner. As a follow up measure, the Superintendent (Preventive), Central Excise, Meerut-II wrote a letter on 6.4.2004 informing the Assistant Commissioner that the Commissioner, Customs and Central Excise, Meerut-II had granted approval for immediate suspension of issuance of facility of C.T. Ill/ Procurement Certificate to the petitioner in terms of CVC guidelines in Paragraph No. 3 of letter dated 17.10.2002 and accordingly to ensure that the facility of C.T.-III/Procurement Certificate be suspended. The petitioner on coming to know about the move to suspend C.T.-III facility, moved a representation on 8.4.2004 for continuance of the facility. A show cause notice was issued by the Development Commissioner, NOIDA Export Processing Zone, on 19.3.2004 calling upon the petitioner to show cause as to why the letter of permission granted to the petitioner be not cancelled to which the petitioner submitted a detailed reply. While the matter was pending before the Development Commissioner, the Assistant Commissioner, Central Excise Division, Hapur, passed an Order on 19/20.4.2004 cancelling the permission to the petitioner to sub-contract the production in job work basis. Another show cause notice was issued on 20.4.2004 by the Development Commissioner, NOIDA Special Economic Zone, proposing to suspend the I.E. Code No. 4100000511 dated 19.2.2001 issued to the petitioner to which it submitted its reply on 9.6.2004. The matter is pending. The petitioner once again approached the Commissioner, Customs and Central Excise, Meerut, vide representation dated 29.4,2004, for restoration of C.T. - III facility which was rejected by Commissioner vide Order dated 14.5.2004. As the facility of C.T. - III was not being restored, the petitioner approached this Court by means of Civil Misc. Writ Petition No. 649(T) of 2004 which was disposed of vide judgment and Order dated 21.5.2004 with a direction to the petitioner to appear before the Assistant Commissioner for hearing and for passing appropriate orders on restoration of C.T.-III facility. The Commissioner, Customs and Central Excise, Meerut - II, vide Order dated 27.7.2004, directed that the facility of duty free procurement of raw materials shall remain stayed and shall be reviewed only on the completion of investigation in this case. The petitioner thereafter moved a representation on 20.7.2004 before the Chairman, Central Board of Excise and Customs, highlighting its difficulties. It once again made a representation to the Development Commissioner, NOIDA Special Economic Zone, NOIDA on 20.9.2004 for restoration of facility of duty free raw materials. According to the petitioner, the Assistant Development Commissioner wrote a letter on 22.9.2004 of the Commissioner, Customs and Central Excise, Meerut requesting him to restore the facility of duty free raw materials. Another representation was made to the Development Commissioner, NOIDA Special Economic Zone, NOIDA on 18.10.2004 upon which the Development Commissioner, vide letter dated 25.10.2004, had written to the Commissioner, Customs and Central Excise, Meerut - II for taking steps for restoration of the facility and once the investigations are completed, the action shall be taken against the petitioner under the Foreign Trade Act. Against the Order dated 27.7.2004 passed by the Commissioner, Customs and Central Excise, Meerut - II, the petitioner preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal, which was decided by the Tribunal on 16.12.2004. The appeal had been allowed and the Tribunal has held that the Commissioner had no authority under the law to suspend the C.T. - III facility granted to the petitioner. It appears that in the meanwhile the petitioner had filed another writ petition before this Court being Civil Misc. Writ Petition No. 1759(T) of 2004, which was, however, withdrawn on 17.12.2004 in view of the Order passed by the Tribunal on 16.12.2004. Inspite of the Order of the Tribunal dated 16.12.2004 as the facility had not been restored, the petitioner made a request on 29.12.2004 to the Superintendent, Central Excise and Customs, Amroha for issuance of pre-authenticated book of C.T. - III, which the Superintendent declined. Similar request was made on the Assistant Commissioner, Central Excise and Customs, Hapur. However, the Additional Commissioner (Preventive), vide letter dated 5.1.2005 informed the petitioner that the Central Board of Excise and Customs has decided that the C.T.-III/Procurement facility can be permitted subject to the execution of bond for the value of the goods and 100% bank guarantee for the duty involved for the goods and similar such security for future procurement. A bank guarantee of Rs. 3.10 crores plus security for future procurement for restoration of C.T.-III facility was also demanded.;