Ashim Kumar Banerjee, J. - (1.) HALDIA Bulk Terminal Private Limited (hereinafter referred to as H.B.T.) a company incorporated under the provisions of Companies Act, 1956 is mainly engaged in the field of Cargo handling operation at Haldia Dock Complex. They imported various equipments including Mobile Harbour Cranes, Wheel Loaders, Dumpers etc. under a scheme that would exempt import duty subject to compliance of conditions imposed there for. As per the Foreign Policy, they were supposed to furnish Bank Guarantees covering the export duty so that, in case of any violation of the conditions the authorities would be in a position to collect the duty through invocation of Bank Guarantees. The entire scheme was being monitored by Director General of Foreign Trade (D.G.F.T.). The import was effected in 2009 followed by three Bank Guarantees amounting to Rs. 3,01,10,808.00; 43,80,906.00 and 18.94,00,000.00. H.B.T. claimed, they performed their obligation under the Foreign Policy and as such was entitled to return of the Bank Guarantees. As per conditions of the contract they duly submitted a clearance certificate from the Director General of Foreign Trade (D.G.F.T.) appearing at page 169 wherein the Director General of Foreign Trade (D.G.F.T.) gave their consent, rather recommended for return of the Bank Guarantees. At that juncture, Customs Authority declined to return, according to them, they would be entitled to proceed in accordance with the provisions of Section 110, 110A and 124 of the Customs Act. Being aggrieved, H.B.T. filed a suit for return of the Bank Guarantees and obtained ad -interim order to the said effect. The learned Single Judge passed ad -interim order on March 15, 2013, directing status quo with regard to transfer of funds that was continued from time to time. The H.B.T. would contend, despite repeated notices, the authority did not appear. The matter was listed "For Orders" on April 23, 2013. The Customs Authority appeared before His Lordship and His Lordship fixed the matter on a subsequent date to enable the Customs Authority to make their submission. The matter appeared on November 7, 2013 when His Lordship again adjourned the matter to enable the Customs Authority to appear as on that date they were absent. The matter ultimately appeared before His Lordship on November 26, 2013 when His Lordship disposed of the application by directing return of the guarantees amounting to Rs. 22 crores. His Lordship rejected the contentions of the Customs as according to the Customs, the H.B.T. was still under obligation to furnish further documents. His Lordship observed, the letter dated March 14, 2013 from the office of the Additional Director General of Foreign Trade would make it clear, H.B.T. performed their obligation stipulated in the licence. Hence, the Customs Authority could not have any duty claim against the plaintiff. His Lordship directed discharge of the guarantees. The Customs Authority subsequently discharged the guarantees and preferred this belated appeal that we heard on the above mentioned dates. CONTENTIONS:
(2.) MR . R. Bharadwaj learned Counsel appearing for the appellant would contend, the letter of the Director General referred to above, would not ipso facto preclude the Customs Authority to proceed against H.B.T. in adjudicating their actual liability towards Customs. He would refer to Sections 17, 47, 110, 110A and 124 of the Customs Act to contend, the said Act would have a complete procedure as to adjudication of the Customs liability. Unless and until the authority would proceed in accordance with law and pass a final verdict on the issue discharging H.B.T. from any obligation to pay any duty the Bank Guarantees could not be released. Mr. Bharadwaj would, however, in usual fairness contend, since the Bank Guarantees had already been released he would be satisfied if we set aside the observation of His Lordship, to the extent, where His Lordship held that the authority would have no duty claim. The observation of His Lordship would actually preclude the authority to proceed against the H.B.T. in accordance with law. Per contra, Mr. A.K. Mitra learned Senior Counsel appearing for H.B.T. would contend, the scheme was propounded by the Union of India as Foreign Trade Policy and the authority under the said policy was Director General of Foreign Trade, once the Director General gave clearance and recommended return of the guarantees the Customs Authority could not have any claim in the matter. He would refer to the letter of the Customs Authority asking for documents and the reply of H.B.T. giving all particulars as asked for. According to him, the Customs Authority asked for the documents by their letter dated on May 2, 2013 that HBT replied promptly on May 9, 2013. The Customs Authority never replied back asking for any further details. Hence, H.B.T. was entitled to release all the guarantees. On instruction, Mr. Mitra would inform this Court, H.B.T. never removed any equipment from Haldia Port Complex. They would be relocating those equipments in terms of the Court order passed in another proceeding. Hence, there was no violation on the part of the H.B.T..
(3.) TO support his contention Mr. Mitra would rely upon two decisions: 1. Hy -Grade Pellets Limited Vs. Commission of Custom, Visakhapatnam reported in Excise Law times Page -171 2. Bhilwara Spinners Limited Vs. Union of India through the Secretary, Ministry of Commerce and Industry, department of Commerce and others reported in : 2011 ELT Page -49;