Page 141 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] RAJHANS IMPEX PVT. LTD. v. UNION OF INDIA 363

timation of the receipt of the goods without CT-3 to the Central Excise Officer. It
appears that the Custom Department’s stand is that due to non-verification of the
goods by the concerned officer, the petitioners have clandestinely disposed of the
goods in the local market. Now, it is pertinent to note that for non-performance
of the official duty by the officer of the Excise Department cannot be a ground to
initiate the action against the petitioner-company who is holding valid Advance
Authorization and has claimed benefit of deemed export in view of para 8.3 of
FTP. Under the provisions contained in the FTP, especially para 8.3, entitles the
petitioners to get benefit of deemed export.
33. It is pertinent to note that in view of Rules 25 and 26 of the Central
Excise Rules referred to hereinabove, it is admitted legal position that if there is
any breach under the said Rules, the Central Excise Department has an authority
to confiscate and impose penalty upon defaulting individual or the firm. Now, in
this case, it is an admitted fact that the Excise Department has clearly informed
the Custom Department that no refund was extended by it to the petitioners
herein. At this juncture, it is pertinent to note that for certain goods, the different
authorities have been empowered to investigate and to take necessary action. In
this case, the question is relating to the refund of the excise duty by the DGFT. As
such, the authority which may take action against the petitioners is DGFT. Of
course, DRI can, after investigation, inform the concerned DGFT to take action
against the present petitioners for breach of condition of Advance Authorization
or deemed export or for wrongful taking TED.
34. Now, admittedly, the petitioner is holding Advance Authorization
and that Advance Authorization has not been cancelled by the competent au-
thority. It is also admitted fact that whatever refund has been granted, is issued
by the DGFT. It also appears from the correspondence between other department
that the jurisdictional Excise Offices have certified the facts of receipt of the
goods though the material was not physically verified. It also appears that DRI is
demanding the amount which has been refunded by the DGFT.
35. It also reveals from the letter dated 27-10-2013 (page No. 167 of the
petition) that the Central Excise Department has not sanctioned any re-
fund/rebate of the duty paid on the supplies to the EOUs. It also appears that the
refund of TED is sanctioned by the DGFT and if DGFT has acted under the dif-
ferent provisions and the refund is sanctioned under those provisions, the proper
authority is DGFT who can initiate proceedings against the petitioners for viola-
tion of exemption notification and the Advance Authorization Licence. Now, it is
an admitted fact that the Advance Autorization Licence of the petitioners is still
valid and no action is taken by the DGFT for breach of condition thereof. As
such, initiation of proceedings by the customs is nothing but an exercise of power
in excess of jurisdiction. When the Custom Department has exercised power in
excess of jurisdiction, than, this Court can exercise its extraordinary writ jurisdic-
tion under Article 226 of the Constitution of India. Therefore, considering peculi-
ar facts of this case, the impugned order-in-original is required to be set aside.
36. In view of the above, the present petitions deserve to be allowed.
Accordingly, the petitions are allowed. The impugned Order-in-Original No.
MUN-CUSM-000-COM-030-16-17, dated 31-3-2017 passed by respondent No. 2 is
hereby quashed and set aside.
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EXCISE LAW TIMES  1st May 2020  141