Page 133 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] RAJHANS IMPEX PVT. LTD. v. UNION OF INDIA 355
the DGFT has issued EODC certificate. According to him, the Custom Authority
may inform DGFT regarding fraud, but the Custom Authority itself cannot initi-
ate any proceedings. He has submitted that at the relevant point of time, there
was valid Advance Authorization in favour of the petitioner and, therefore, the
issuance of the notice is without jurisdiction.
11. In the case of Commissioner of Customs v. Rajnarayan Jwalaprasad (su-
pra), this Court while relying on the decision of the Supreme Court in the case of
Titan Medical Systems Pvt. Ltd. v. Collector of Customs (supra) has observed that
once an advance licence is issued and not questioned by the licensing authority, the cus-
toms authority cannot refuse exemption on an allegation that there was any misrepresen-
tation. That if there was any misrepresentation, it was for the licensing authority to take
steps on that behalf.
12. In the case of C.C. (Export Promotion), Mumbai v. Koatex Infrastructure
Ltd. (supra), it is observed therein that when EODC has neither been suspended
nor cancelled, the parties are entitled for the exemption.
13. In the case of Simplex Infrastructure Ltd. v. Union of India (supra),
where the case was that the Terminal Excise Duty was granted and the refund thereof
was ordered which was challenged before the High Court, wherein it was held that there
can be no review of earlier refund except in accordance with Section 16 of Foreign Trade
(Development and Regulation) Act, 1992, which only permits Director General of For-
eign Trade or Central Government to exercise power of review.
14. In the case of Sheshank Sea Foods Private Limited (supra), while refer-
ring to Section 111(o) of the Customs Act, 1962, the Apex Court has held and ob-
served in paras 8 and 9 as under :-
“8. Section 111(o) states that when goods are exempted from customs du-
ty subject to a condition and the condition is not observed, the goods are li-
able to confiscation. The case of the respondents is that the goods imported
by the appellants, which availed of the said exemption subject to the condi-
tion that they would not be sold, loaned, transferred or disposed of in any
other manner, had been disposed of by the appellants. The Customs au-
thorities, therefore, clearly had the power to take action under the provi-
sions of Section 111(o).
9. We do not find in the provisions of the Import and Export Policy or the
Handbook of Procedures issued by the Ministry of Commerce, government
of India, anything that even remotely suggests that the aforesaid powers of
the Customs authorities had been taken away or abridged or that an inves-
tigation into such alleged breach could be conducted only by the licensing
authority. That the licensing authority is empowered to conduct such an
investigation does not by itself preclude the Customs authorities from do-
ing so.”
14.1 While considering the factual aspect thereof, it was observed in the
said decision that the breach was not only of the terms of the licence; it was also a
breach of the condition in the exemption notification upon which the appellants therein
obtained exemption from payment of customs duty and, therefore, the terms of Section
111(o) enable the Customs authorities to investigate.
15. In the case of Panoli Intermediate (India) Pvt. Ltd. (supra), while refer-
ring to the various decisions of the Apex Court, this Court has observed that “no
legislation can whittle down or dilute or nullify the power of the constitutional Court
under Article 226 of the Constitution of India, but the parameter for exercise of the writ
of certiorari would be in a case where the Tribunal or the Authority has acted without
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