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I.L. & F.S. Tamil Nadu Power Company Limited, Rep. by its Authorised Signatory, P. Sekar, Chennai v/s Commissioner of Customs (Sea Imports - Import), Chennai & Others


Company & Directors' Information:- U. P. POWER CORPORATION LIMITED [Active] CIN = U32201UP1999SGC024928

Company & Directors' Information:- D B POWER LIMITED [Active] CIN = U40109MP2006PLC019008

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Active] CIN = L40105WB1919PLC003263

Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Amalgamated] CIN = U40101WB2003PLC097340

Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

Company & Directors' Information:- S L S POWER CORPORATION LIMITED [Active] CIN = U40109AP2005PLC047008

Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- S. E. POWER LIMITED [Active] CIN = L40106GJ2010PLC091880

Company & Directors' Information:- E O S POWER INDIA PRIVATE LIMITED [Active] CIN = U32109MH1985PTC037094

Company & Directors' Information:- D C POWER LIMITED [Strike Off] CIN = U40109TG1996PLC025996

Company & Directors' Information:- POWER CORPORATION OF INDIA LIMITED [Amalgamated] CIN = U50101WB1997PLC084060

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- R K IMPORT PRIVATE LIMITED [Active] CIN = U74899DL1994PTC057913

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

Company & Directors' Information:- N M S POWER PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089747

Company & Directors' Information:- P R B POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG1995PTC020647

Company & Directors' Information:- S V G POWER PRIVATE LIMITED [Active] CIN = U40300AP2012PTC084435

Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- P A IMPORTS PRIVATE LIMITED [Active] CIN = U74900WB2012PTC189348

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- O L G POWER P LTD [Active] CIN = U30007TN1991PTC020898

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- POWER AND POWER PVT LTD [Active] CIN = U31300AS1989PTC003282

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- S B S POWER PRIVATE LIMITED [Strike Off] CIN = U40100AP2012PTC083965

Company & Directors' Information:- B & G POWER LIMITED [Active] CIN = U40105PB2010PLC033765

Company & Directors' Information:- J J IMPORTS PRIVATE LIMITED [Strike Off] CIN = U74899DL2000PTC105693

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- POWER INDIA PVT LTD [Strike Off] CIN = U31102WB1983PTC036315

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- U S POWER PRIVATE LIMITED [Under Process of Striking Off] CIN = U40103MH2009PTC189364

Company & Directors' Information:- K P M POWER PRIVATE LIMITED [Strike Off] CIN = U40102KA2008PTC046804

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- S K POWER INDIA PRIVATE LIMITED [Strike Off] CIN = U31101KA2006PTC039172

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- J & A IMPORTS PRIVATE LIMITED [Strike Off] CIN = U51102KA2011PTC057508

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- R & R IMPORTS PRIVATE LIMITED [Strike Off] CIN = U51909PB2009PTC033163

Company & Directors' Information:- T C POWER PRIVATE LIMITED [Strike Off] CIN = U40101PB2009PTC033405

Company & Directors' Information:- H. & T. POWER PRIVATE LIMITED [Active] CIN = U40106MH2016PTC287646

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- A C R POWER PRIVATE LIMITED [Strike Off] CIN = U74900UP2010PTC040987

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- H P IMPORTS PRIVATE LIMITED [Active] CIN = U51909DL2011PTC224522

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- M. V. IMPORT PRIVATE LIMITED [Strike Off] CIN = U51900GJ2009PTC058237

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

Company & Directors' Information:- A. R. POWER PRIVATE LIMITED [Strike Off] CIN = U74999DL2007PTC161616

Company & Directors' Information:- IMPORT CORPORATION PVT LTD [Strike Off] CIN = U51909PB1952PTC001769

Company & Directors' Information:- SEA INDIA LIMITED [Dissolved] CIN = U99999MH1949PLC007943

    W.P .No. 18412 of 2014

    Decided On, 26 August 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

    For the Petitioner: C. Manishankar, Senior Counsel, K. Krishnamoorthy, Advocate. For the Respondents: R1 & R2, K. Ravi, Senior Standing Counsel, R8, C. Mohan for M/s. King & Patridge, Advocates.



Judgment Text

(Prayer: Petition filed under Article 226 of Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the 2nd respondent ending with the communication F.No.S37/20/2012 - Gr.6 dated 2.7.2014 and quash the same and consequently direct the respondents to grant clearance of the equipment for the Phase I of the Power Project mentioned in the following bills of entry (1) 6053094 dated 08.07.2014; (2) 6041512 dated 07.07.2014; (3) 6041666 dated 07.07.2014; (4) 6049530 dated 08.07.2014; (5) 6052620 dated 08.07.2014; (6) 6048644 dated 08.07.2014; (7) 6060489 dated 08.07.2014; (8) 6057960 dated 08.07.2014; (9) 6057034 dated 08.07.2014; (10) 6057405 dated 08.07.2014; (11) 6044125 dated 07.07.2014; (12)6043344 dated 07.07.2014; (13) 6050933 08.07.2014; (14) 6051116 dated 08.07.2014; (15) 6060482 dated 08.07.2014; (16) 6060701 dated 08.07.2014; (17) 6060627 dated 08.07.2014; (18) 6048609 dated 08.07.2014; (19) 6050568 dated 08.07.2014; (20) 6060530 dated 08.07.2014; (21) 6058675 dated 08.07.2014; (22) 6056026 dated 08.07.2014; (23) 6056187 dated 08.07.2014; (24) 6056377 dated 08.07.2014; (25) 6058648 dated 08.07.2014; (26) 6041523 dated 07.07.2014; (27) 6041659 dated 07.07.2014; (28) 6041650 dated 07.07.2014; (29) 6041511 dated 07.07.2014; (30) 6053083 dated 08.07.2014; (31) 6055023 dated 08.07.2014; (32) 6048142 dated 08.07.2014; (33) 6048316 dated 08.07.2014; (34) 6054626 dated 08.07.2014; (35) 6048998 dated 08.07.2014 already filed.)1. The writ petition is filed questioning the legal validity of the Communication dated 02.07.2014 issued by the second respondent.2. The petitioner is a Company registered under the Companies Act and is involved in the business of setting of a 3180 MW coal based Mega Thermal Power Project in Kothattai, Ariyagoshti and Villianallur Revenue Villages of Chidambaram Taluk, Cuddalore District, with a view to sell power to the Distribution Licensees in the State of Tamil Nadu and other regions.3. The learned Senior Counsel appearing on behalf of the writ petitioner mainly contended that the Communication dated 02.07.2014 is directly in violation of the notification issued by the Government of India, Ministry of Finance on 17th March 2012 under Section 25(1) of the Customs Act, 1962. The Notification categorically states that 'In case of imports for a project for which certificate regarding Mega Power Project status issued by an officer not below the rank of Joint Secretary to the Government of India in the Ministry of Power is provisional, the importer furnishes a security in the form of a Fixed Deposit Receipt from any Scheduled Bank for a term of thirty six months or more in the name of the President of India for an amount equal to the duty of customs payable on such imports but for this exemption, to the Deputy Commissioner of Customs of Assistant Commissioner of Customs, as the case may be, at the time of importation and if the importer fails to furnish the final mega power status certificate within a period of thirty six months from the date of importation, the said security shall be appropriated towards duty of customs payable on such imports but for this exemption.' In view of the said Notification, the subsequent impugned Communication issued on 02.07.2014 during the subsistence of the Notification is invalid and cannot be enforced at all. Though the impugned Communication was issued pursuant to the Master Circular issued by the Reserve Bank of India on 01.07.2009, the said Master Circular are issued by the Reserve Bank of India would not have any implication with reference to the Government of India Notification issued governing the affairs of the petitioner company. It is further contended that any transactions of the petitioner company falls prior to the issuance of the impugned Communication and therefore, the said Communication is not enforceable in respect of the transactions of the petitioner with the Customs Department.4. The learned Senior Panel Counsel appearing on behalf of the Customs Department made a submission that the Customs Department is bound by the Master Circular issued by the Reserve Bank of India regarding acceptance of Bank Guarantee in DBOD.No.Dir.BC.14/13.03.00/2009-10 dated 01.07.2009. The Communication dated 02.07.2014 was issued in consonance with the Master Circular issued by the Reserve Bank of India and therefore, even if the petitioner is of an opinion that it is aggrieved from and out of such Circular, they have to seek relief from the Reserve Bank of India and certainly not against the Customs Department.5. The learned Senior Panel Counsel reiterated that the petitioners themselves in their letter has stated that they had accepted to get Auto Renewal clause duly included in the future Bank Guarantees. In another letter, the petitioners have stated that the Auto Renewal clause is acceptable, if the Banks accept the same. When the petitioners themselves accept the Auto Renewal facility provided by the Banks, pursuant to the Master Circular issued by the Reserve Bank of India, there is no reason to consider the relief as such sought for in the present writ petition.6. The learned counsel appearing on behalf of the State Bank of India made it clear that Auto Renewal clause is available to all the customers and the same will be extended at the request of the customers concerned. If any option is provided to avail the benefit of Auto Renewal clause, then, the Banks are bound to give the facility of Auto Renewal clause and therefore, there is no impediment as such for the petitioner to provide an option for Auto Renewal clause.7. Considering the arguments, the writ petition was filed in the year 2014 challenging the Communication issued by the Ministry of Finance Department of Revenue and the said Communication was issued relating to the Bank Guarantee for customers purposes. A provision for Auto Renewal was issued by the Reserve Bank of India in its Master Circular dated 01.07.2009. Similarly, the Central Board of Excise and Customs also issued a Circular dated 30.06.2010 based on the Reserve Bank of India Master Circular and the Circular issued by the Central Board of Excise and Customs, the respondents issued an impugned Communication dated 02.07.2014 directing the petitioners to opt for an Auto Renewal clause which became a requirement as per the Reserve Bank of India for the purpose of Bank Guarantee for customers purposes.8. It is relevant to take note of the letter sent by the petitioner on 28.02.2014 to the Deputy Commissioner of Customs, wherein the petitioners have clearly stated as follows."During the above submission, we had accepted to get Auto Renewal clause duly included in the future bank guarantees. We bring to your kind attention that we are having 19 lenders (various banks & LIC) in our lending consortium, with Punjab National Bank, Large Corporate Branch New Delhi as leader of consortium."9. In another letter dated 18.6.2014, the petitioners have again stated that if the Banks accepted the Auto Renewal clause, they have no objection for the same and the said portion of the letter is extracted hereunder:"Under the above circumstances, we are currently not able to fulfil the requirement of the department with regard to auto renewal facility. We have taken up the matter with our banks and will continue to submit the bank guarantees as stated above and request you to accept the bank guarantees that till such time the same auto renewal clause is accepted by the banks."10. Beyond the above two letters sent by the petitioners, this Court is of an opinion that Auto Renewal clause is a facility provided by the Banks and the petitioner could not able to establish in the event of opting such Auto Renewal clause, their rights are affected, a writ petition may be entertained if the petitioner is able to establish a right and such a right is infringed. In the present case, undoubtedly at the initial stage, the Communication was not available and that was not taken note of, however, during the year 2014, the respondents issued

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a communication which is impugned in the writ petition.11. The petitioners also in the letter have stated that they have no objection for opting the Auto Renewal clause. Beyond all these, by opting an Auto Renewal clause, the rights of the petitioners are not going to be affected with reference to the business transactions or agreements otherwise. The Banks are acting based on the instructions given by its customers and it is only an option provided and the petitioners are having transactions in the Customs Department and this being the factum, the relief as such sought for in the present writ petition deserves no merits consideration and therefore, the petitioner is at liberty to opt for Auto Renewal clause as they agreed in the letters enabling the authorities to proceed further in respect of the transactions.12. With these observations, the Writ Petition stands disposed of. No costs.
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