Page 186 - ELT_1st August 2020_Vol 373_Part 3

368 EXCISE LAW TIMES [ Vol. 373

28. In the light of the above discussion, questions (i) and i(a) are an-
swered in affirmative, that is, in favour of the respondent and against the reve-
nue. The appeal, therefore, fails and is accordingly, dismissed.
29. In the light of the dismissal of main appeal, the civil application for
stay does not survive and stands disposed of accordingly.

_______

2020 (373) E.L.T. 368 (Mad.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS

C. Saravanan, J.
K. DHANDAPANI & CO. LTD.
Versus
DIRECTOR GENERAL OF FOREIGN TRADE, NEW DELHI
D.G.F.T., NEW DELHI
W.P. Nos. 38158 of 2003 & 22282 of 2009 and W.M.P. Nos. 46325 of 2003, 11233
of 2007 and M.P. No. 1 of 2009, decided on 25-2-2020
EXIM - Export Promotion Capital Goods (EPCG) Scheme - Failure to
fulfill conditions of licence - Interest - Availment of benefit of Notification
No. 160/92-Cus. at time of import of capital goods under EPCG Scheme an-
nounced under EXIM Policy, 1992-1997 - Importer executed bond/undertaking
to pay interest at 24% in case failure to discharge export obligation or violate
conditions of license - License itself contemplates that importer execute letter
of undertaking and bond as per para 102 of Handbook of Procedure as amend-
ed from time to time with respect to export obligation - Having taken ad-
vantage of scheme not open for importer to state that Department had no pow-
er to demand Customs duty or levy interest thereon - Having agreed to bind to
conditions of license, importer cannot approbate and reprobate - Not open for
importer to state that Officers of Ministry of Commerce had no power to levy
of interest - However, importers entitled to reduction of interest in terms of
policy decision in D.G.F.T. Public Notice No. 22 (RE-2013)/2009-14, dated 12-8-
2013 as implemented by Notification No. 46/2013-Cus. - Bank guarantee fur-
nished by importers exceeded proportionate Customs duty payable on short-
fall in export obligation - Amounts appropriated towards interest cannot ex-
ceed proportionate customs duty on shortfall in export obligation - Amount of
interest payable by respective petitioners required for re-quantification - Li-
censing authority to re-determine interest to be paid by importers in terms of
said notification - Section 11(2) of Foreign Trade (Development and Regula-
tion) Act, 1992. [2008 (224) E.L.T. 184 (S.C.) relied on; 1997 (6) SCC 479 distin-
guished]. [paras 36, 37, 38, 39, 40, 41, 56, 57, 58]
Approbate and reprobate - Importer after having taken the benefit of
EPCG Scheme cannot claim that the Department had no power to demand
Customs duty or levy interest thereon - Having agreed to bind to conditions of
licence, importer cannot approbate and reprobate. [paras 38, 41]
Case remanded

EXCISE LAW TIMES  1st August 2020  186