Page 131 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] RAJHANS IMPEX PVT. LTD. v. UNION OF INDIA 353

ty and at this stage, this Court may not entertain the present petitions. According
to her, there is an alternative efficacious remedy available to the petitioners
available under the Central Excise Act before the Customs, Excise and Service
Tax Appellate Tribunal. She has submitted that the petitioners have not availed
alternative remedy and directly approached this Court. While referring to the
decision in the case of Panoli Intermediate (India) Pvt. Ltd. v. Union of India, 2015
(326) E.L.T. 532 (Guj.), she has submitted that in the said decision also, this Court
has held that the writ petition is maintainable but the grounds mentioned therein
are that when the authority has passed the order without jurisdiction and by as-
suming jurisdiction and by overstepping or crossing the limits of jurisdiction or
acting in flagrant disregard to law or rules or procedure or acting in violation of
the principles of natural justice where no procedure is specified and accordingly,
the said decision will not be applicable in this case.
9.1 Ms. Shruti Pathak, Learned Counsel for respondent No. 2 has sub-
mitted that the petitioners were granted the benefits of the advance authorization
scheme which was issued to allow duty free import of inputs. According to her
submission, the petitioners were required to fulfil the criteria which includes (i)
physical exports (including exports to SEZ); (ii) intermediate supply and/or (iii)
supply of goods mentioned in the categories mentioned in Foreign Trade Policy,
(iv) supply of stores on board for foreign going vessels/aircraft. According to her
submission, during the investigation by the DRI, it was found that the petitioners
had clandestinely, instead of actually exporting the goods to EOUs, disposed of
the goods in the open market. She has submitted that during investigation by the
DRI, it reveals that the petitioners have showed clearance of brass and copper
alloys rod to 100% EOUs and SEZ and availed benefit of deemed exports thereon
and they have also obtained the benefit of the advance authorization scheme
from the DGFT, Rajkot for duty free import of raw material i.e. brass/copper
scrap/zinc scrap. She has submitted that the petitioners have also availed refund
from the DGFT, Rajkot under the scheme of rebate.
9.2 Ms. Shruti Pathak, Learned Counsel for respondent No. 2 has sub-
mitted that the deemed exports which were shown to have been made by the
petitioners was made without any CT-3 and on the basis of the payment of the
central excise duty which was later claimed back by them through refund of the
TED from the DGFT, Rajkot. She has submitted that as all these facts came to the
knowledge of the DRI, the show cause notice was issued to the petitioners and
opportunity was given. During such investigation, it was found that the deemed
export clearances, which were made by the petitioners, were not even genuine
and were shown only on papers. According to her version, the provisions of the
Foreign Trade Policy, para 8.3(c) provides that the refund of the TED will be giv-
en, if exemption is not available to the supplies having been made to 100% EOUs
and, therefore, the refund of TED was not admissible to the petitioners. She has
submitted that the petitioners have grossly misused Customs Notification No. 98
of 2009 and for the purpose of availing benefit of the advance authorization
scheme in connivance with 4 EOUs. While relying on the various decisions, she
has submitted that the Custom Authority has properly passed the order and it
has jurisdiction to take action within the powers conferred upon it under Section
111 of the Customs Act. She has submitted that the jurisdiction and powers of the
licensing authority stand on a different footings which mainly have the duty cast
upon them to monitor and to see that the provisions with respect to the license
are duly complied with and in case of breach of the provisions contemplated un-
EXCISE LAW TIMES  1st May 2020  131