Page 111 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] MPD INDUSTRIES PVT. LTD. v. UNION OF INDIA 645

15. Undisputedly, the petitioners have failed to comply with the afore-
said requirement and for the reasons best known to the petitioners, the petition-
ers have not impleaded the SEZ Unit, Dahej as respondent, which is a necessary
party. Whether the goods were received at SEZ Unit, Dahej or not, could have
been answered by the SEZ Unit, Dahej only. The petitioner have also not com-
plied various statutory provisions by not furnishing Bill of Exports.
16. Learned Counsel for the petitioners has vehemently argued before
the Court that the controversy involved in the present case stands concluded on
account of judgment delivered by the Bombay High Court in the case of Larsen &
Toubro Limited v. Union of India & Others (W.P. No. 14375/2016) dated 12-9-2017
[2018 (360) E.L.T. 289 (Bom.)].
17. Paragraph 41 of the aforesaid judgment reads as under :-
“41. Then the certificate from the Central Excise in original dated 18-4-
2013 issued by the Superintendent of Central Excise, Belapur, certifying ex-
empted material with specification imported against advance authorization
and used in the manufacture of the resultant product was enclosed.”
18. This Court has carefully gone through the aforesaid judgment. The
judgment delivered in the aforesaid case is distinguishable on facts as in the said
case the officer of the Central Excise Department issued a certificate dated 18-4-
2013 certifying exempted material with specification imported against Advance
Authorization and used in manufacture of resultant product. The fact is reflected
in paragraph 41 of the aforesaid judgment. Also the Officer of SEZ, as per para-
graph 54 of the aforesaid judgment, has certified that the goods have been re-
ceived.
19. In the present case, the petitioners have opted not to implead SEZ
as a respondent, and therefore, as there is no verification on the part of the Of-
ficer of the SEZ, the petitioners are not entitled for any relief of whatsoever kind
on basis of the judgment delivered in the case of Larsen & Toubro (supra).
20. It is true that the SLP against the judgment delivered in the case of
Larsen & Toubro (supra) has been dismissed but the SLP has been dismissed in
limine at admission stage and it does not amount to precedence keeping in view
the judgment delivered in the case of State of Uttar Pradesh & Others v. Rekha Rani
reported in (2011) 11 SCC 441. Thus in short, the petitioners in the present case,
applied for issuance of Advance Authorizations for duty free import of goods in
India against supplies to be made to the purchaser and various Advance Author-
izations were issued from time to time. The petitioners’ stand is that the petition-
ers have exported the goods manufactured through M/s. DIC Fine Chemical
Limited, a SEZ Unit at Dahej, and therefore, they are not liable to pay any duty
keeping in view the Foreign Trade Policy, 2004-2009. The proof required for the
purpose is “Bill of Export” and the petitioners have not been able to submit the
Bill of Export. Whether the petitioners have supplied goods to the SEZ Unit, Gu-
jarat or not, can only be looked into after petitioners file a reply to the Depart-
ment in respect of the letters issued to the petitioners. It is purely question of fact
and can be looked into by the competent authority.
21. In the considered opinion of this Court, the question of interference,
at this stage in the peculiar facts and circumstances of the case, does not arise.
22. Accordingly, the present Writ Petition stands dismissed.
23. The order passed by this Court in the present case shall govern the
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