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2021-TIOL-1953-HC-DEL-CUS
Kundan Care Products Ltd Vs UoI
Cus - Re-export of Gold Dore Bars - Union of India seeks review of High Court order dated 4th September, 2019.
Held: An application for review, even in a writ petition, it is well settled, can rely only on the grounds envisaged by Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (CPC) - The review petition does not make out any case of either of an error apparent on the record of the impugned order - which merely records the consent of learned Counsel for the respondent and disposes of the petition on that basis - or of the order meriting a re-consideration owing to any new material which has come to the notice of the respondent, i.e. the petitioner in the present review petition – Contention of Counsel for Revenue that re-import of the Gold Dore Bars could not be permitted as they have been imported in violation of the conditions in Notification 50/2017-Cus supra, merely requires to be stated to be rejected - No Bill of Entry having been filed in respect of the Gold Dore Bars in the present case, and as they still remained within Customs bond, the factum of import of the bars is, as yet, incomplete - It cannot be said that the import of the Gold Dore Bars into India is completed at this point of time - They cannot, therefore, be said to be in the nature of "imported" goods, for the purposes of enforcing the actual user condition contained in Notification 50/2017-Cus - Right of the importer to re-export the imported goods, even after clearance and removal to its factory premises, for bona fide grounds, stands acknowledged by the Supreme Court in the case of M. J. Exports Ltd 2002-TIOL-646-SC-CUS - One such permissible consideration is the fact that the use and sale of the goods in India, has become financially un remunerative - Every businessman works, axiomatically, for profit and that, if the tax authorities impose unrealistic restrictions, unsupported by statutory prescription or proscription, in the way of legitimate trade, it would, in the ultimate eventuate, discourage international trade and commerce, and would, therefore, be detrimental to the national economic interest - The objection of the respondent relates to the license issued to the petitioner by the DGFT inasmuch as that the import of the Gold Dore Bars was in violation of the license and that, therefore, their re-export could not be allowed - The license having been issued by the DGFT, the views of the DGFT regarding the scope thereof are entitled to pre-eminent consideration over the views of the Customs authorities - Supreme Court has clearly held in Atul Commodities Pvt. Ltd. = 2009-TIOL-24-SC-CUS that, in matters of interpretation of the FTP and the handbook of procedures, the DGFT is the final authority and the Customs cannot take a view contrary to the view held by the DGFT - DGFT clearly clarified that export of gold not being prohibited, the petitioner was entitled to re-export of the Gold Dore Bars – There is no justifiable reason for the Customs authorities to contend otherwise – Bench does not feel that, in acceding to the request of the petitioner to re-export the Gold Dore Bars, the Standing Counsel, on 4th September, 2019 committed any error apparent from the record - Review petition dismissed: High Court [para 2, 29, 31, 33, 35.4, 36, 37, 38, 39, 41]
- Petition dismissed: DELHI HIGH COURT
2021-TIOL-1952-HC-DEL-COFEPOSA
Naveen Kasera Alias Naveen Agarwal Vs UoI
COFEPOSA – Allegation of fraudulent exports and imports in order to evade Customs duty and earn undue export benefits including IGST refunds through 33 non-existent and/or dummy firms - Petitioner challenges order dated 15.01.2021 made under section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974.
Held: A gap of more than 02 years between the last alleged prejudicial activity undertaken by the petitioner cannot be the basis for a justifiable apprehension that the petitioner would indulge again in similar prejudicial activity, to prevent which he should be preventively detained - Detention order passed on 15.01.2021 and served upon the petitioner on 23.01.2021 cannot be said to be validly based upon alleged prejudicial activity undertaken by the petitioner on 11.12.2018 - Preventive detention being drastic State action based only upon suspicion arising from a person's past activity, can be allowed, as the settled legal position mandates, only if there is a live, causal link between a person's past activities and the need for passing of a preventive detention order - A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity - Delay in the passing and execution of a preventive detention order not only defeats the very purpose of such order, but more importantly, creates a doubt as to the necessity of adopting such a harsh measure against an individual, whereby the individual's liberty is curtailed on suspicion alone - Detention order dated 15.01.2021 does not answer the requirements of the law for preventively detaining the petitioner - Order dated 15.01.2021 is quashed and set-aside – Bench directs that the petitioner be released from custody forthwith, unless his custody is required in any other matter: High Court [para 20 to 23]
- Petition allowed: DELHI HIGH COURT |
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