An importer has completed export obligations under EPCG licence and got Export Obligation Discharge Certificate ( EODC ) also. After a period of 10 years, JDGFT reviewed his own order and demanded customs duty with interest. Is it tenable ?
1. As per Section 16 of the THE FOREIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992 shortly FTDR Act empowers the Director General to review any decision or order made by the Joint Director of Foreign Trade. Hence JDGFT can’t review his own order and even it is required it can be done by Director General only.
2. Also Section 16 empowers the Director General to review the order, within a period of two years from the date of the decision or the order passed. Apparently, all the impugned notices are beyond the period of two years and no explanation for this inordinate delay in the proposal to review the order.
3.It is a settled proposition of law that when a notice is issued without jurisdiction and against the authority of law writ petition of the assesse can be entertained by High Courts under Article 226 of the constitution of India.
4. Hence JDGFT review order is not tenable.
Foreign Trade (D&R) Act 1992 - Sec 16 - APPEAL AND REVIEW reproduced below ;
“The Central Government in the case of any decision or order made by the Director General, or the Director General in the case of any decision or order made by any officer subordinate to him, may on its or his own motion or otherwise, call for and examine the records of any proceeding, for the purpose of satisfying itself or himself, as the case may be, as to the correctness, legality or propriety of such decision or order and make such orders thereon as may be deemed fit:
Provided that no decision or order shall be varied under this section so as to prejudicially affect any person unless such person-
(a) has, within a period of two years from the date of such decision or order, received a notice to show cause why such decision or order shall not be varied; and
(b) has been given a reasonable opportunity of making representation and, if he so desires, of being heard in his defence
M/S. SIMPLEX INFRASTRUCTURES LTD., (FORMERLY SIMPLEX CONCRETE PILES (INDIA) LTD.,) VERSUS THE UNION OF INDIA, THE JOINT DIRECTOR GENERAL OF FOREIGN TRADE, POLICY INTERPRETATION COMMITTEE, DGFT, NEW DELHI. MADRAS HIGH COURT decided on 02.09.2020
#Customs Law Quick Bites-18
