Y.R. MEENA, J.

(1) THESE two cross appeals are directed against the impugned judgment dated 8th December, 2000 of learned single Judge.

(2) THE petitioner No. 1 is a Registered Partnership Firm and Petitioner No. 2 is one of the partners in that firm.

(3) PETITIONER No. 1 carries on business of export and import. The main business of petitioner is to export silk fabric and finished glass beads.

(4) THE Government of India published an Export and Import Policy for the years 1997-2002. The scheme called Duty Exemption Scheme. In that scheme on export the exporter gets duty free licence for import of goods i. e. called Duty Entitlement Pass Book (DEPB). The duty credit under the scheme is calculated on the basis of the value of the goods exported. The exporter is eligible to claim the duty free import goods at a specified percentage of value of export made by the exporter. The import licence that is DEPB is valid for a period of 12 months from the date of issuance of that import licence. The DEPB under the said policy may be issued either on post-export or on pre-export basis.

(5) WHAT will be the value of the exported goods that is a subject matter of Customs Department after valuation of the goods exported by the Customs Department. The licensing authority is the Director General of Foreign Trade, which issues the Duty Free Import Licence to the exporter.

(6) LEARNED counsel for petitioner Shri Bazoria has submitted that between June and July, 1999 the petitioner effected export of 33 consignments of finished Glass Beads under the DEPB Scheme to foreign buyer namely M/s Chang Zeng Exporters, Singapore. The Shipping bills filed by the petitioners were finally assessed by the Customs Authorities and goods were exported. The details of the goods exported and assessed are given at page 36 of the Paper Book.

(7) M/s. Chang Zeng Exporters have received and accepted the goods exported and also the payment has been made of all the invoices through the banker No. 1.

(8) THE petitioner after export filed shipping bills along with application and other required documents as provided under the Hand Book of Procedure. The petitioners filed 29 applications to respondent No. 1 for issuance of DEPB, which were scrutinized by the department and found to be in order in all respect and file number was also given to the petitioner by respondents that means all applications were scrutinized and found in order for grant of DEPB. Thereafter, DEPB was to be issued within 5 days that is per procedure and practice of the department.

(9) THE respondent No. 1 issued DEPB to the petitioner in respect of 1 to 24 consignments mentioned in the chart at page 37 of the Paper Book without raising any dispute whatsoever. But he has not issued the DEPB in respect of serial Nos. 25 to 29 of the said chart, though the final assessment has been made in case of these 5 shipping bills also and the purchaser has also remitted the amount of price to the petitioner. In October 1999 the petitioner was informed as value cap has been fixed at Rs. 150/- per kg. The Duty Free Import Licence cannot be issued on the basis of the assessment of exported goods made by the Customs Department.

(10) FOR item Nos. 30 to 33 the applications was filed after the assessment to respondent No. 1 but those were returned on the ground that the fixed rate of goods, in the form of value cap will be issued by the department shortly. Therefore, the duty free import licence cannot be issued on the basis of valuation assessed by the Customs Department. The application can be submitted after the rates fixed by the Government of Export Goods under value cap. Rates fixed of export goods under value cap issued on 15. 10. 1999.

(11) THE writ petition filed and the petitioner prayed before learned single Judge that respondents be directed to issue DEPB at the notified rate of the FOB value of export in respect of items Nos. 25 to 29. For the item Nos. 30 to 33 the respondents be directed to accept the applications of the petitioners and processed for issue of DEPB.

(12) PETITION has been disposed of by learned single Judge vide impugned order dated 8th December, 2000 whereby the learned single Judge directed the authorities concerned to take all possible steps including the valuation for purpose of issuance of Duty Entitlement Pass Book under the scheme and positively within 2 weeks from the date of communication of his order. He further directed the applications which are returned by the authorities to the petitioner, the petitioner is directed to place those applications immediately before the authorities so that all the cases can be disposed of within time as indicated by this Court.

(13) LEARNED counsel for the petitioner/appellant submits that after final assessment learned single Judge cannot give direction to the authorities under the Foreign Trade (Development and Regulation) Act to take all possible steps including the valuation for the purpose of issuance of the Duty Entitlement Pass Book. The case of the petitioner/appellant is that the authorities under Foreign Trade (Development and Regulation) Act have no power to make the assessment of goods exported. Assessing authority is Customs Department. They have made the final assessment of the goods exported. There is no provision, which authorise even the Customs Authorities to reopen those assessments for revaluation of the goods, which are exported and finally assessed.

(14) LEARNED counsel for the Foreign Trade department submitted that under the hand book which provides the procedure for assessment is competent for reassessment, if it is found that the value of goods exported has not been correctly disclosed or there is fraud on the part of exporter in connection with the export of goods.

(15) HARD learned counsel for the petitioners. The facts are not in dispute that the petitioners/appellants have exported 33 consignments of goods. Details regarding these 33 consignments such as who is the buyer, what is shipping bills No. , quantity, date of final assessment, date of shipment/bill of lading date, FOB Value, PMV. , date of remittance received and in last column, in how many cases DEPB has been issued is given at page 36 of the paper book. These facts given at page 36 are not in dispute. The perusal of the details given at page 36 reveals that after final assessment and on applications by the assessee to respondent No. 1 DEPB has been issued in case of item Nos. 1 to 24. In case 25 to 29 items the final assessment was made. Application was submitted to respondent No. 1 but DEPB has not been issued. In case of item Nos. 30 to 33 after final assessment by the Customs Department, applications were made to respondent No. 1, but those applications returned on the ground that now the rate is being fixed under value cap on the exported goods. The petitioner was directed to submit the applications after the rate fixed for licence fixed under value cap.

(16) LEARNED counsel for the department drew out attention to the handbook of procedure for the period of April 1, 1997 to 31st March, 2002 in case of exports where DEPB can be issued. He specially invited our attention to para 7. 38 and 7. 43 of chapter 7 and para 15. 10 of chapter 15. He also drew out attention to the circular No. 69 of 97, circular dated 22. 10. 1998 and circular dated 11. 5. 1999, wherein the time limit is given for completion of the assessment.

(17) PARA 7. 38 of chapter 7 of the handbook provides that the exporter should made application in the form given in appendix 11c. Para 7. 43 provides that the licensing authority shall ensure, that while issuing DEPB shipping bills Nos. and dates, FOB value in free foreign exchange as per shipping bill and description of export products are endorsed on the DEPB. Before allowing the imports against DEPB the Customs Department shall verify that the details of the export as given on DEPB are as per their record.

(18) TO consider the issue whether the DEPB should be issued in respect of item Nos. 25 to 33, the reference of circulars referred is necessary. The procedure prescribed in the notification 69/97, circular No. 79/98 and circular No. 23/99 are relevant.

(19) MR. Bazoria learned counsel for the petitioners/appellant submitted that in case of these 33 consignments, shipping bills were submitted and final assessment has been made and even DEPB has been issued in case of 1 to 24. The DEPB has not been issued in case of item Nos. 25 to 33 on the ground the department has some doubt that the value declared by the petitioner is on very high side from the market value. Therefore, the Department wants to relook into the cases in which the final assessment has already been made. He further submits that firstly after final assessment, the goods are exported there is no provision, which authorized the Customs Department to relook of the assessment finally made and Foreign Trade Department has no power to question the value assessed by the Customs Department.

(20) HE drew our attention to circular 69/97, which was issued on 8th December, 1997. Thereafter, it was amended by circular No. 79/98, 22nd October, 1998 and 3rd circular 23/99 was issued on 11th May, 1999.

(21) AS per circular issued on 8. 12. 1997, if the enquiry is not finalized within 30 days than the value declared by the exporter shall deem to have been accepted. In circular No. 79/98 dated 12. 10. 1998, it is further provided that if the enquiry is not completed and final assessment is not made within 30 days that period can be extended by Commissioner of Customs to 90 days. If enquiry is not completed in 90 days the value declared by the exporter shall deemed to have been accepted.

(22) IN 3rd circular No. 23/99 dated 11. 5. 99, the circular provides that in case of doubt regarding the value declared by the exporter the provisional assessment can be made but let the goods be exported. Thereafter on detail enquiry final assessment may be made and DEPB will be issued on the basis of final assessment. He submits that these circulars do not authorise the Customs Authorities to relook the cases in which the assessments finally made after 11. 5. 1999.

(23) NOW it brings us to the controversy whether the DEPB can be refused in cases where final assessment has been made after 11. 5. 1999

(24) BEFORE we proceed we would like to mention that only Customs Authorities are competent to make the assessment for valuation of exported goods, and Customs Authorities in this case has not filed any affidavit nor any show cause notice has been issued by them to relook or to reopen the assessments finally made.

(25) ON these facts learned counsel for the respondent has not explained that as how the circular No. 69/97 and circular No. 79/98 dated 22nd October 1998 help the Department for reassessment in the cases where final assessment has been made.

(26) IN J. G. Exports v. Commissioner of Customs, Chennai 1999 (195) ELT 258, the Madras High Court has considered the circular No. 69/97 on the issue that when the department claimed that the exported consignments were grossly over-valued. Whether Department can make the enquiry regarding value of goods after expiry of 30 days from the date of export. The Court held that as per circular No. 69/97, the value deemed to have been accepted by the authorities after expiry of 30 days from the date of exports, therefore, Department cannot reopen the assessment for valuation. The Madras High Court has further taken the view that circular issued by the Board is binding on the authorities of the department and after considering that circular the Court has directed the departmental authorities to verify the facts for issue of DEPB, as required under para 7. 43 of the Hand Book of procedure. After verification of facts issue DEPB.

(27) LEARNED counsel for petitioner/appellant also brought to our notice that in case of petitioner and M/s. Ramapati Exports, Calcutta, M/s. R. G. Sales (P) Ltd. , Calcutta and M/s. Transworld Impex, Cuttack, the Assistant Commissioner of Customs has addressed letter to Zonal Joint Director General of Foreign Trade stating that on preliminary enquiry it is found that goods exported are at highly inflated price with the intention to avail maximum credit under DEPB. Shri Bazoria submits that in case of one of them that is M/s. Ramapati Exports, has challenged the show cause notice of adjudicating authority, for reassessment on the ground of mis-declaration of the value of the goods.

(28) IN appeal, the Commissioner of Customs (A) has dropped the proceedings initiated on the basis of show cause notice. Commissioner has also taken the view that there is no evidence to invoke the provision to section 28 of the Customs Act 1962.

(29) MR. Bazoria further submits that in case of M/s. Ramapati Exports and case of this petitioner the value of goods declared almost similar and that value has been accepted in appeal by Customs commissioner (A). Therefore, even on merits, the department has no case for sitting over the applications of the petitioners for issue of DEPB.

(30) LEARNED counsel for the department further brought to our notice that in Circular No. 23/99 provided that final assessment can be made at any time for that the time limit for assessment has been lifted. This circular even applicable in case of the consignments assessed and exported. This circular has retrospective effect. Therefore, after 11. 5. 1999 the cases of assessments already made can be reopened.

(31) LEARNED counsel for Department submits that in such cases para 7 of this circular No. 69/97 was never intended to be applicable. In such cases consignment should be allowed provisional clearance and the Shipping bill should be assessed provisionally. Such shipping bills will not be entitled to DEPB scrip till the market enquiry is completed and the provisionally assessed shipping bills are finalised. Where the present market value declared by the exporter is not accepted, a show cause notice can be issued to the exporter as to why the PMV declared by him should not be rejected/revised.

(32) TO these arguments Shri Bazoria has replied that this circular has retrospective effect, but applicable only in the cases where the value of the exported goods has been accepted under deeming provision of earlier circulars. But if the final assessment is made after enquiry and after 11. 5. 1999, in such cases question of reopening the final assessments does not arise.

(33) MUCH emphasis has been laid by learned counsel for the Department on circular No. 23/99 issued on 11. 5. 1999 which provides that where a Commissioner of Customs is satisfied that the enquiry for determining the present market value of the goods, has to be examined, for reasons involving fraud/collusion/will full mis-statement or suppression of facts which shall be recorded by him in writing, he can extend the period of enquiry for three months or till such further period, as he deemed necessary,

(34) IT is true after circular dated 11. 5. 1999, the Commissioner of Customs can extend the period of enquiry to any extent, but whether he can reopen the cases in which the final assessment has been made, after market enquiry by Customs Department In our view he cannot reopen a case where the final assessment are made by the Customs Department after 11. 5. 1999. The period of enquiry can be extended without any limit in cases where only provisional assessments is made as required under circular No. 23/99 dated 11. 5. 99 or assessment can be reopened where deemed value has been accepted in view of earlier circulars.

(35) IN the case in hand the final assessments are made after making the necessary enquiries from the market after 11. 5. 1999. When final assessment is made after market enquiry commissioner has no power to reopen the assessment for further enquiry. We do not understand in what way it helps the department or how the department can reopen the final assessments made after 11. 5. 1999.

(36) AFTER circular dated 11. 5. 1999 that deeming provision has been omitted and a new procedure has been substituted that in case where some doubt has been raised by the Commissioner of Customs of export goods that value has not been correctly declared or shown in the shipping bills there would be a provisional assessment but the goods will not be detained and after show cause notice the final assessment will be made and exporter will be entitled only on the value finally assessed after show cause notice. As stated above if after enquiry final assessment has been made after 11. 5. 1999 in such cases there is no scope for reopening of the assessment. Admittedly in this case no show cause notice has been issued till today by Customs Department, which alone is competent authority for assessment or re assessment of value of goods.

(37) IN this background we order and direct the respondent No. 2 after verification as required under para 7. 43 of the Hand Book, issue the DEPB in case of item Nos. 25 to 29 within 10 days from the date of communication of this order.

(38) NOW it brings us to the item Nos. 30-33 referred at page 36. Learned counsel for the petitioner/appellant Shri Bazoria has submitted that petitioner after assessments of consignments No. 30 to 33, has submitted the application to authority for issue of DEPB. These applications were returned to the petitioner with direction that these applications can be submitted after value cap is fixed for DEPB. He further submits that on 20th November, 1999 there was a search and seizure in the house of Shri Bharat Kumar Mahesaria and in that search the applications covered under serial Nos. 30 to 33 together with all the relevant papers, shipping bills and documents belonging to the petitioner were seized by the Customs Authority from the residence of Shri Bharat Kumar Mahensaria and these documents have nothing to do with the show cause consignments. Still they are lying with the Customs Department. The Customs Authorities is therefore be directed to return those applications along with the other documents which are relevant for making applications to the respondent for issued of DEPB.

(39) WHETHER the direction can be given to return the applications in this issue we have considered in case of Commissioner of Customs, Calcutta and Ors. v. Kanhaiya Exports Pvt. Ltd. and Anr. wherein direction has been given to the Customs Authorities to return the documents immediately to the petitioner or a person to whom those documents belong, if the documents are not connected with the cases in which show cause notice has been issued.

(40) IN view of that direction in case of Kanhaiya Exports Pvt. Ltd. and Anr. we direct the Customs Authorities, the application regarding serial Nos. 30 to 33 referred at page 36 of Paper Book along with other relevant papers belonging to this petitioner be returned to the petitioner within 10 days from the date of communication of this order.

(41) ON return of these applications to the petitioner, the petitioner is directed to submit these applications for DEPB. The respondent, the Zonal Director General of Foreign Trade is also directed, on receipt of those applications process those applications, and issued DEPB within 6 weeks, in accordance with law, from the date of receipt of the applications item Nos. 30 to 33 referred at page 36 of the paper book. In the light of above directions both the appeals and applications are stand disposed of. Prayer for stay is rejected. M. K. Basu, J.-I agree. Appeal disposed of