Rajesh Kumar Agrawal, J. - (1.) BY means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s. Salar International through its partner, Mohd. Qasim, seeks the following reliefs: - - (i) to issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to release the petitioner's pending draw back claim amounting to Rs. 18,96,332 alongwith interest till dated @ 15% per annum as prescribed under section 75 -A of Draw Back Rules, 1995; (ii) to issue a writ, order or direction in the nature of mandamus directing and commanding the respondents not to adopt any coercive measures for realisation of the amount mentioned in the notices dated 28.4.2003 (Annexure -XII to the writ petition). (iii) to issue a writ, order or direction in the nature of certiorari quashing the show cause notice dated 28.4.2003 respectively issued to the petitioner (Annexure -XII to the writ petition) by the Deputy Commissioner of Customs, LCD., Moradabad (respondent No. 3); (iv) to issue a writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; and (v) to award the cost of the petition to the petitioner. Briefly stated, the facts giving rise to the present petition are as follows: - - The petitioner is a registered partnership firm and claims to be a Government recognised export house. It has been allotted Import and Export Code No. B -00588074926. It is engaged in the business of manufacture and export of handicrafts made of bras art wares, iron art wares, copper art wares, galvanised art wares and other Indian handicrafts. For the purpose of making export of these goods, the petitioner had imported electrical components (fittings) under the scheme, known as, Duty Exemption Entitlement Certificate (hereinafter referred to as "the D.E.E.C."). The custom authorities exempted the duties on import of electrical components as it is a Government recognised export house. The petitioner had claimed duty draw back on brass scrap and other items. It had exported some consignments of trodden table lamps under the scheme of draw back shipping bills containing brass art wares and copper art wares fitted with electrical components during the period 16.3.1996 to 16.12.1996. In the aforesaid consignment of export, the petitioner has used imported electrical fittings which it had imported under Advance Licensing Scheme under the Notification No. dated 31.3.1995. It had claimed draw back on all industry rate of brass art wares with imported electrical fittings and also on copper with iron art wares with imported electrical fittings, exported by it in discharge of its export obligations. According to the petitioner, a show cause notice dated 27.2.1997 was issued for the alleged contravention of the provisions of sections 50(2), 75, 113(i) and (ii) and 146(2) of the Customs Act, 1962 (hereinafter referred to as "the Act") asking it to show cause as to why pending claims amounting to Rs. 4,42,727.00 should not be restricted to Rs. 1,12,326.00, i.e., an amount equivalent to central excise allocation and why penalty should not be imposed. The petitioner submitted its reply on 10.3.1997 stating therein that the draw back has been claimed on the exported goods in view of Para. 70 -A of the Export and Import Policy, as amended till date, and further the brass and copper which it used in the manufacture of exported item, was fully indigenous and procured from the market. The allegations made in the show cause notice was emphatically denied. Another reply was submitted on 28.5.1998 before the Assistant Commissioner (Customs) Draw Back Department, Moradabad, stating therein that it has not claimed draw back of D.E.E.C. portion of shipping bills (electrical components) and further at the time of shipment, the Superintendent, LCD., Pakbara, Moradabad has examined the goods and allowed the draw back @ 48/ - per kg. and 23% on brass art wares and Rs. 43/ - per kg. on copper items. The Assistant Commissioner of Customs and Central Excise, Moradabad, vide order dated 26.6.1998, did not accept the explanation submitted by the petitioner and restricted the claim of duty draw back to Rs. 1,12,326/ - and also imposed a sum of Rs. 25,000/ - as penalty. The Assistant Commissioner of Customs, Moradabad, vide order dated 30.6.1998 also rejected the supplementary claim filed by it. The aforesaid orders dated 26.6.1998 and 30.6.1998 were challenged by the petitioner before the Commissioner (Appeals), Custom and Central Excise, Ghaziabad, under section 128 of the Act. The Commissioner (Appeals), vide order dated 22.9.1999, has allowed the appeals with the observation that in the case of duty free licence, the draw back shall be available in respect of any duty paid material as provided in Para. 70 -A of the Export and Import Policy, 1992 -1997. The order dated 22.9.1999 was challenged by the Department by filing an appeal before the Custom Excise and Gold Control Appellate Tribunal, New Delhi. As the appeal was filed beyond the limitation prescribed under the Act, the application for condonation of delay filed alongwith the memorandum of appeal was taken up by the Tribunal and it being not satisfied with the explanation for the delay, furnished by it, declined to condone the delay and consequently, dismissed the appeal vide order dated 10.8.2000. After the dismissal of the appeal, the Deputy Commissioner, I.C.D., Moradabad, vide order dated 15.11.2000, asked the petitioner to submit relevant papers for finalisation of pending draw back claim. It is alleged by the petitioner that the department had filed a revision against the order of the Tribunal, being Revision No. 456/457 of 2001, before the Government of India and the Government of India, vide order dated 31.10.2001, had dismissed the said revisions. Thereafter, the petitioner had made a representation before the Deputy Commissioner, Customs, Draw Back Department, Moradabad, on 27.11.2001 for release of the draw back claim with interest. The Commissioner, Customs, NOIDA, at the administrative level, advised the Deputy Commissioner, Customs, I.C.D., Moradabad, in reply to his letter dated 6.12.2001, to interpret the order of the Commissioner, (Appeals), Customs and Excise and decide the matter accordingly as he is the proper officer in the matter of grant of draw back and refrain from making such reference on the issue in future. It appears that the department had filed an application for rectification before the Tribunal on the ground that the appeal filed before it was not maintainable and, therefore, the order dated 10.8.2000 be recalled. The said application had been rejected by the Tribunal vide order dated 23.8.2.002 with the observation that there is no merit in the application as there is no mistake in the order which requires rectification. The petitioner thereafter made representations on 25.11.2003 and 3.12.2003 before the Assistant Commissioner, Draw Back Department, I.C.D., Moradabad, requesting him to make payment of pending draw back claim, which was followed by another representation made on 5.12.2003. Instead of making payment of the draw back claim, the Assistant Commissioner, Customs, I.C.D., Moradabad, had issued two notices, both dated 28.4.2003, calling upon the petitioner to show cause as to why a sum of Rs. 1,85,427/ - and 6,20,285/ - erroneously paid to it as draw back be not recovered under Rule 16 of the Custom and Central Excise Duty Draw Back Rules, 1995 (hereinafter referred to as "the Rules"). The petitioner had submitted its reply on 28.5.2003 denying the liability and further for release of the balance amount of the draw back. The notices dated 28.4.2003 are under challenge in the present writ petition.
(2.) WE have heard Sri S.K. Mehrotra, learned Counsel for the petitioner, and Sri A.K. Rai, learned Standing Counsel appearing for the respondents. The learned Counsel for the petitioner submitted that the draw back has rightly been allowed on all industry rate and thus, there is no question of withdrawing the same. According to him, the goods exported is more of other matters other than electrical fittings as such the petitioner is entitled for draw back on the materials used, which have been procured indigenously. He further submitted that the order of the Commissioner (Appeals), dated 22.9.1999, has become final and, therefore, the respondents are bound to give effect to the said order and make payment of the draw back claim.
(3.) THE learned Standing Counsel, however, submitted that the amount of draw back is to be computed in terms of the duty paid and if the petitioner has used indigenous materials in the manufacture and export of items, it is not entitled to claim any draw back. He referred to section 75 of the Act and the Rules to emphasize that the rate of draw back is in respect of which the duty chargeable on the imported raw materials or excisable materials has been paid. According to him, in respect of indigenous raw materials, the petitioner has not furnished any proof of the duty having been paid and, therefore, it is not entitled to draw back.;