- (1.) THIS writ application is directed against notices dated April 30, 2009, and June 2, 2009 issued by the Assistant Commissioner of Customs, Special Tax Recovery Cell(Port), dated June 19, 2006, dated July 15, 2009 issued by the respondent no.6 and dated September 15, 2009 issued by the respondent no.5. The instructions dated September 8 and September 9, 2009 issued by the respondent no.5 to the respondent no.7 are also under challenge in this writ application.
(2.) THE facts of the case in a nutshell are as under: THE petitioner and the respondent no.8 are the Directors of Srinivasa Exim Pvt. Ltd., incorporated under the Companies Act, 1956 (hereinafter referred to as the said company). In the year 2000 the said company exported 7000 dozens of basic T-shirts (white) to Dubai. THE said company claimed draw back duty from the customs authorities. THE customs authority issued three draw back demand confirmation orders in the year 2003 under the provisions of Rule 16A(2) of the Customs and Central Exercise Duty Draw Back Rules, 1995 bearing nos.S24M- 459/02 DBK for Rs.12,86,754, S34M-302/03 DBK for Rs.5,16,416 and S34M- 439/03 DBK for Rs.1,84,706 respectively. According to the petitioner, the said company had to close down its business operation in the year 2004. Subsequently, it was ascertained by the customs authorities that the sale proceeds of the above transactions were not released. In the month of November 2005, the petitioner was informed by the customs authority that a proceeding was initiated for recovery of the aforesaid draw back amount by the Draw Back Department of the customs. By a communication dated April 28, 2006 the petitioner informed the respondent no.6 that the said company had been closed. However, the petitioner accepted the liability of refunding the aforesaid draw back amount in instalments at a minimum amount of Rs.5000/- per month. In the mean time, the petitioner sent Demand Drafts amounting to Rs.10,000/- each dated January 5, 2006, February 1, 2006, March 7, 2006 and April 19, 2006 to the Customs Authority. By a communication dated June 19, 2006 the respondent no.6 informed the petitioner that out of total liability of Rs.19,87956/-, the petitioner had paid Rs.60,000/- only till that date. Since there was no provision under the Customs Act, 1962 for refund of Government dues on instructions, the respondent no.6 directed the petitioner by the above communication to refund the balance amount within 15 days from the receipt of the above communication. In reply, the petitioner informed the respondent no.6 by his communication dated June 20, 2006 that the balance government dues could not be paid at a time due to his financial stringency and he further paid a sum of Rs. 20,000/- by a Demand Draft dated June 7, 2006.
(3.) SUBSEQUENTLY, the Assistant Commissioner of Customs, Special Tax Recovery Cell (Port) informed the petitioner by a communication dated April 30, 2009 that though there was no provision for recovery of government dues in instalments under the Customs Act, 1962, the respondent authority had accepted the refund of aforesaid draw back amount from the petitioner by instalments for the time being. But a total amount of Rs.4,10,000/- had been paid against total government due of Rs.19,87,956 plus applicable interest till that date. So, the petitioner was directed by virtue of the above communication to remit the balance government due towards the aforesaid draw back demand within two months. Thereafter, the Assistant Commissioner of Customs Special Recovery Cell (Port) issued a notice dated June 2, 2009 to the petitioner for refund of the aforesaid balance draw back amount within seven days failing which the customs authority would initiate proceeding in terms of Customs (Attachment of Property of Defaulters for Recovery of Government Dues), Rules 1995 read with the provisions of Section 142(1)(c) (ii) of Customs Act, 1962. The petitioner gave reply dated June 11, 2009 to the above notice through his learned Advocate requesting the respondent authority for giving at least one month time to the petitioner. On receipt of the above communication the respondent no.6 further informed the petitioner by a communication dated July 15, 2009 that the respondent authority was no longer willing to accept the repayment towards refund of the aforesaid draw back amount in instalments.;