The petitioner company is an exporter of manmade fabrics. The exports are made through the ports of Gujarat and Maharashtra. The petitioner enjoys various incentives under the Foreign Trade Policy. 2.0 As per the case of the petitioner, the Director of the petitioner firm was called upon by the officer of Respondent No.6 at its office and he was made to give cheque No.2850709 dated 21st September 2011 for Rs.30,00,000/. The petitioner gave cheque under protest. It is the further case of the petitioner that the Director had to part with the cheque bearing Nos. 043257 and 043258 dated 19th September 2011 and 21st September 2011 respectively each for that amount of Rs.25,00,000/ under a pressure and a threat. The cheques were given under protest. It is the grievance of the petitioner that the respondent authorities have neither raised any demand for custom duty, nor any such duty is assessed. Nor any order is passed for any recovery against the petitioner. Therefore, according to the petitioner, the demand for the amount and asking him to give the cheque was unjustified and illegal. It had been contended in the petition that the authorities had no jurisdiction to ask to pay back or collect the amount in this manner and that by adopting pressure means, they were collecting evidence.
2.1 The petitioner has prayed following principal reliefs in the petition.
“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 to refund Rs.30,00,000/ (Rupees Thirty Lakhs Only) paid under protest vide cheque no.285709 dated 21.09.2011 in favour of Commissioner of Customs with interest as applicable for refunds under law.
(B) That Your Lordships be pleased to hold that the recording of statement 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 nonest.
(C) That pending admission, hearing and/or final disposal of this petition, Your Lordships be pleased to (a) order refund of Rs.30,00,000/ (Rupees Thirty Lakhs only) paid under protest by petitioner vide cheque No.285709 dated 21.09.2011 in favour of Commissioner of Customs unconditionally with interest payable as per law or (b) in the alternative, direct respondent No.6 to deposit the same in this Hon'ble High Court pending final decision.”
3.0 We have heard Mr. Kamal Sojitra, learned counsel for the petitioner, Mr. P. S. Champaneri, learned senior standing counsel for the Central Government appearing on behalf of respondent Nos.1, 2 and Mr. Y. N. Ravani, learned counsel appearing for the respondent Nos. 3 to 6.
3.1 Learned advocate appearing for respective parties agreed that the facts of the present petition are similar to those involved in Special Civil Application No.17125 of 2011 and Special Civil Application No.17126 of 2011, and the controversy is identical. It was submitted that those petitions came to be disposed of by oral order dated 21st March 2012 by a Division Bench of this Court. The learned counsel for the petitioner has urged that in Special Civil Application No.4479 of 2012 [Oswal Prints Pvt Ltd through Director vs. Union of India and Others] decided on 2nd July 2012 by this Bench a same view has been taken. A copy of that order was placed before us.
3.2 It may be noted that as against the case of the petitioner, the say of the respondent is that the cheques in question were voluntarily deposited by the petitioner with a view to avoid possible levy of penalty under the Act. It was submitted by learned advocate Mr. Ravani that the Director of Revenue Intelligence (DRI) had been investigating as to whether any benefit was wrongly availed by the petitioner etc. Learned advocate submitted that the DGFT was competent to cancel the license in the event the petitioner is found to be in default. It was further submitted by him that respondent No.5 had issued summons to the petitioner for cancellation of benefit under the Focus Product Scheme.
4.0 Having considered the rival case and the respective submissions, we found that it is not in dispute that there is neither adjudication of any custom duty against the petitioner, nor any recovery order is passed. Given such factual position, the conduct on the part of the respondent concerned in collecting the cheque from the petitioner was not justified. Learned advocate appearing for respondent Nos.2 to 6 was not in position to dispute that any adjudication or demand for custom duty had not been made against the petitioner and any amount had not been payable by the petitioner towards any such duty even then the cheque was collected.
5.0 In the above scenario, learned advocate Mr. Ravani fairly stated that since in the facts and circumstances no demand notice was issued against the petitioner, the Director of Revenue Intelligence (DRI) was ready to refund the amount of cheque. It was stated by him that if the cheque given by the petitioner was already encashed, the amount would be refunded, and if the cheque was not encashed, the authorities would return the cheque itself. He further stated that for the purpose of obtaining the refund/ the cheque, the petitioner may apply to the competent authority of the Custom department. At the same time, he requested that the Court may clarify that returning of cheque/refund of the amount would not come in the way of the DGFT or any other competent authority to initiate any action in law against the petitioner if required in the event the petitioner is found to have committed any default.
6.0 Learned counsel for the petitioner placed reliance of 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 relied on the decision of Apex Court in Sheshank Sea Foods Pvt. Ltd. v. Union of India 1996 (88) ELT 626 (SC).
7.0 Concededly when there is no adjudication or demand of any custom duty raised against the petitioner, the act of collecting the cheque from the petitioner under any purport sans justification. It is, therefore, proper that the respondent authorities return the cheque in question collected from the petitioner, and/or refund the amount, as per the statement made by learned advocate Mr. Ravani.
8.0 Accordingly, it is observed and directed that the petitioner may approach the custom authority concerned with an appropriate application. Upon receipt of such application, the authority concerned shall refund the amount/return the cheques as per the statement made by learned advocate and recorded above. The authority shall act as per the statement and shall refund the amount without any avoidable delay.
9.0 It is clarified that if upon investigation, it is found that the petitioner has availed any benefit or incentive wrongfully or that the petitioner is in default on any other count for which he is liable for any action, the Director General of Foreign Trade or any other competent authority is not precluded from taking action against the petitioner in accordance with law.
10.0 With the aforesaid direction, this writ petition stands finally disposed of. Notice is discharged. No costs.
[V. M. SAHAI, J.] Amit [N. V. ANJARIA, J.]