Allowed

M/S Plastic Processors and Exporter Pvt. Ltd. v. Union of India and 3 Others

Allahabad HC7 Feb 2019WTAX/708/2018

Case brief

AI extract

What is this about?

The Court quashed Circular No. D012/20/2015-SEZ dated 13.2.2018 which sought to amend Circular No. C6/10/2009-SEZ dated 17.9.2013 by imposing an additional condition that plastic recycling units in SEZ must physically export a percentage of their annual turnover. The Court held that since the Gujarat High Court had quashed the 2013 Circular and it remained inoperative, amendments based on it were

What did the court decide?

Circular No. D012/20/2015-SEZ dated 13.2.2018 is quashed; the writ petition is allowed.

M/S Plastic Processors and Exporter Pvt. Ltd. Vs Union… — Customs and Excise | Allahabad HC (2019)

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Court No. - 35

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Case :- WRIT TAX No. - 708 of 2018

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Petitioner :- M/S Plastic Processors And Exporter Pvt. Ltd. Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Nishant Mishra Counsel for Respondent :- A.S.G.I.,B.K.Singh Raghuvanshi,Gyan Prakash

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Hon'ble Bharati Sapru,J. Hon'ble Piyush Agrawal,J.

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(Delivered by Hon'ble Piyush Agawal,J.)

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By means of the present writ petition the petitioner has sought a writ of certiorari quashing the Circular No. D012/20/2015-SEZ dated 13th February, 2018 passed by the respondent no.2 by which the respondents have sought amendment in circular letter dated 17.9.2013 which was required to be fulfilled by the Units established at Special Economic Zone (in short 'SEZ').

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We have heard Sri Nishant Mishra, learned counsel for the petitioner and Sri B.K.Singh Raghuvanshi, learned counsel for the respondents.

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Brief facts of the case are that the petitioner is engaged in reprocessing of plastic films/ scrap and established Unit in Noida Special Economic Zone. By letter dated 5.11.1997 the petitioner was permitted to recycle plastic raw material from imported scrap in the Export Processing Zone as empowered by Special Economic Zones Act, 2005 (hereinafter referred to as the Act, 2005) read with Special Economic Zones Rules, 2006 (hereinafter referred to as the Rules, 2006). Section 2(1) and all provisions of the Act,2005 were made applicable to the petitioner and the letter of approval was extended under Rule 19(6) of the Rules, 2006 from time to time.

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The petitioner while complying with Section 30 of the Act,2005 read with Rule 47(1)(a) was making DTA clearance against payment in foreign exchange and on payment of appropriate customs duty as provided under Rule 53 of the Rules, 2006 and thus fulfilling the obligation of maintaining a positive NFE.

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A Circular No. C6/10/2009-SEZ dated 17th September, 2013 was issued by the respondent no.2 imposing additional conditions including that in paragraph 3(x) requiring all plastic recycling units operating in SEZ to ensure that percentage of annual turnover, as mentioned in the letter, is physically exported out of the country.

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The letter of approval of the petitioner was renewed for a period of five years from 230.11.2013 to 29.11.2018 with a condition that condition imposed by Circular dated 17.9.2013 shall be applicable and is required to be complied with for the first two years.

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It was argued by the petitioner's counsel that the Gujarat High Court in the case of Imperial Overseas Pvt. Ltd. Union of India (2017 (350) ELT 359) has quashed the Circular dated 17.9.2013 and, therefore, the Circular dated 17.9.2013 became null and void.

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It was informed at the Bar that against the judgment in Imperial Overseas Pvt. Ltd. (supra) neither any stay order has been passed nor the said judgment has been set aside. This fact has also not been disputed by the counsel appearing for the respondents.

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The issued involved here is with regard to levy of

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certain condition under the Central Act, i.e. Customs Act and any order passed by the High Court is binding upon all the authorities and as such any amendment by means of the impugned circular is not permissible under law.

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Learned counsel for the respondent has relied upon the Circular and has only tried to justify the amendment made in the impugned circular.

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In paragraph no. 31 of the counter affidavit filed by the respondents it has been admitted that against the judgment in Imperial Overseas Pvt. Ltd. (supra) neither any interim order has been passed nor the Revenue has approached the Apex Court.

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In the judgment of Imperial Overseas Pvt. Ltd. (Supra) the Gujarat High Court has held as under:

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"20. Now, as per the relevant provisions discussed and reproduced herein above, the conditions imposed by the Authority while issuing the LOA to each petitioner are in consonance with the guidelines of 2013. The relevant conditions which are referred to herein above are not in consonance with the Rules since none of the Rules prohibit the unit established in SEZ to remove the goods in DTA. Under Section 55 (3) of the SEZ Act, no rules are amended and, therefore, when the petitioner units are following the rules, particularly, Rule 53 of the Rule and in accordance with Section 30 of the Act and paying the custom duty in foreign currency, there was no need to impose conditions as per the guidelines of 2013. It is not the case of the respondent that any of the petitioner unit has committed breach of any provisions of other Act or Rules and not earned net foreign exchange earnings and has not paid custom duty in foreign currency.

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21. Therefore, in my opinion, the policy in question which imposes certain restrictions which are contrary to the Act and Rules would not sustain. I do not find any substance in the submissions of Mr. Divyeshvar that policy is issued for generation of additional economy since the Government is neither losing any foreign currency or any custom duty and particularly, when the units are following the provisions of the

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Act and Rules.

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22. When Section 30 itself provides the payment of custom duty with regard to removal of goods manufactured in SEZ to Domestic Tariff Area and the conditions specified in the Rules, there is no reason for the Authority to issue a Policy with regard to plastic manufacturers only and compelling them to remove the goods out of India.

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23. It is true that when a Policy is laid down by the Government, the High Court would be at loath to interfere with the same. However, if mandatory provisions are enacted to frame Rules, and are not followed by the authority, as in the present case, the Court can quash and set aside such Policy. Therefore, in my opinion, the ratio laid down by the Hon'ble Supreme Court in the case of Captain Sube Singh and others v. Lt. Governor of Delhi and others, (2004) 6 SCC 440 2004 Indlaw SC 349, CIT, Mumbai v. Anjum M. H. Ghaswala and others, (2002) 1 SCC 633 2001 Indlaw SC 20805, Dhanajaya Reddy v. State of Karnataka, (2001) 4 SCC 9 2001 Indlaw SC 19893 (Supra).

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24. In the result, the petitions are allowed. The policy on units in SEZs carrying on recycling of plastic scrap or waste dated 17.9.2013 (No. C.6/10/2009-SEZ) issued by respondent No.1 and conditions in the letter of extension (LOA) issued by respondent No.3 to each of the petitioner which are based on the impugned Policy and/or contrary to the provisions of The Special Economic Zones Act,2005 or The Special Economic Zones Rules, 2006 are hereby quashed and set aside. Rule is made absolute to the above extent. The parties to bear their own costs."

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This Court is in full agreement with the judgment passed in Imperial Overseas Pvt. Ltd. (supra). In view of the said fact no other condition can be imposed by way of issuing the impugned Circular dated 13.2.2018, hence the same is hereby quashed.

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The writ petition succeeds and is allowed.

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Order Date :- 7.2.2019 samz

M/S Plastic Processors and Exporter Pvt. Ltd. v. Union of India and 3 Others

Case brief

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M/S Plastic Processors and Exporter Pvt. Ltd. v. Union of India and 3 Others

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