(Per : HONOURABLE MR.JUSTICE A.L.DAVE) These two petitions are cognate to Special Civil Application No.14509 of 2011 and allied matters. However, since they were left out when those petitions were disposed of on 21.11.2011, they are listed before us.
2. Heard learned advocate Mr. Dhaval Shah for the petitioners, Mr.Champaneri, learned standing counsel for Respondent Nos.1 and 2 and Mr.Ravani, learned counsel for respondent Nos. 3 to 6.
3. By these petitions, the petitioners seek following reliefs:
"A.
That Your Lordships be pleased to issue a writ of mandamus or in the nature of mandamus or any other writ, order or direction refund of Rs.59,02,136/- (Rupees Fifty Nine lakhs Two thousand One hundred and Thirty six only) paid under protest vide cheque no 212828 dated 16.09.2011 with interest as applicable for refunds under law.
B.
That Your Lordships be pleased to hold that the recording of statements and the recovery of incentives under FPS granted by Respondent No.5 by the officers working under Respondent No 6 to this Special Civil Application is totally lacking in jurisdiction, complete violation of principles of natural justice, contrary to principles of promissory estoppel, arbitrary, absurd, discriminatory and therefore illegal and non-est.
C.
That Pending admission, hearing and final disposal of this petition, your Lordships be pleased to (a) order refund of Rs.59,02,136/- (Rupees Fifty Nine lakhs Two thousand One hundred and Thirty six only) paid under protest by Petitioners vide cheque no 212828 dated 16.09.2011 unconditionally with interest payable as per law or (b) in the alternative, direct Respondent No 6 to deposit the same in Honourable High Court pending final decision.
D.
An Ex-parte ad-interim reliefs in terms of para 17 (C) above may kindly be granted."
4. Before us, it is not disputed that licences have been issued to the petitioners by DGFT. Mr. Y.N.Ravani has submitted that DRI is making investigation under Customs Act as to whether petitioners have availed any benefit wrongly or not. If the petitioners have misused the licence or in issuing licence DGFT has committed any mistake, then it is always open to the DGFT to cancel the licence of the petitioner. But it has not been done so far. Initially, summons were issued by the Customs Authority asking the petitioners to appear before them and to provide the details with regard to export of fabric under RITC5407 claiming benefits of Focus Product Scheme of Chapter 3 of Foreign Trade Policy through JNCH Port by the petitioner company.
5. According to the learned counsel for the petitioners, neither any customs duty has been assessed on the petitioners nor any order has been passed against the petitioner for realising customs duty from the petitioners. Therefore, the demand of customs duty made by Customs Authority for which the petitioners had to deposit cheques with the DRI under threat of arrest by the petitioners.
6. Learned counsel for the petitioners has placed reliance on the decision of the Apex Court in Titan Medical Systems Pvt.Ltd. v. Collector of Customs, New Delhi 2003(151) ELT 254(SC), whereas learned counsel Mr.Y.N.Ravani has placed reliance on the decision of the Apex Court in Sheshank Sea Foods Pvt.Ltd. v.Union of India 1996(88) ELT 626 (SC).
7. It is stated by learned advocate Mr.Ravani that since there is no adjudication in respect of duty in question, nor is there any demand notice issued, DRI is ready to refund the amount of cheques which have been encashed or to return the cheques which have not been encashed. He also states that for the purpose the petitioners may apply to concerned authorities of customs. Mr.Ravani's case, however, is that the cheques were deposited by the petitioners voluntarily with a view to avoid penalty under Section 28(C) of the Customs Act. Be that as it may, fact remains that there is no adjudication; there is no demand notice and amount is csollected by encashing the cheques and, therefore, the respondent authorities shall either return the cheques which are not encashed or refund the amount of cheques which have been encashed. This would not preclude DGFT or any other authority initiating any action in case any default is found on the part of petitioner.
8. The petitions stand finally disposed of with above observations. Notice is discharged. No costs. Interim relief, if any, would stand vacated.
[A.
L. DAVE, J.] [N.
V. ANJARIA, J.] Amit Top