2006 (5) TMI 315 - Commission - Customs

Issues Involved:
1. Misdeclaration of goods under DEPB and DFRC schemes.
2. Procedural and legal eligibility for filing settlement applications.
3. Verification of applicant identity and signatures.
4. Non-appearance and non-cooperation with the Revenue.
5. Validity of applications with undelivered Show Cause Notices.
6. Authority of advocates to modify applications.
7. Requirement of applicant's presence before the Commission.

Detailed Analysis:

1. Misdeclaration of Goods under DEPB and DFRC Schemes:
The case was based on intelligence that M/s. Mars Overseas was exporting cheap materials under the DEPB scheme by misdeclaring them as bulk drugs. The DRI identified and detained a shipment declared as 'Amoxycillin Trihydrate' but found to contain 'Calcium Carbonate (Chalk Powder)'. Further investigations revealed a pattern of fraudulent exports by M/s. Mars Overseas, involving misdeclaration of goods under both DEPB and DFRC schemes. The Show Cause Notice proposed confiscation of goods and rejection of DEPB benefits and Customs duty claims.

2. Procedural and Legal Eligibility for Filing Settlement Applications:
The applicants filed for settlement under Section 127B of the Customs Act. The Commission examined whether a person who has been absconding and has never appeared before the Revenue can file a settlement application. It was concluded that there is no stipulation in the Act preventing such a person from applying to the Settlement Commission, provided the application fulfills the mandatory conditions.

3. Verification of Applicant Identity and Signatures:
The Revenue raised concerns about verifying the identity and signatures of applicants who had not appeared before them. The Commission noted that the applications were duly notarized and verified, and the identity of the applicants could be established through various documents, including photographs and signatures on bank account details and IE Code.

4. Non-appearance and Non-cooperation with the Revenue:
The Commission considered whether non-appearance before the Revenue constituted non-cooperation, which could debar filing of settlement applications. It was determined that non-appearance alone does not constitute non-cooperation, provided the applicant makes a full and true disclosure of duty liability.

5. Validity of Applications with Undelivered Show Cause Notices:
The Commission addressed whether applicants who had not received Show Cause Notices could approach the Settlement Commission. It was clarified that issuance of a Show Cause Notice is sufficient for eligibility, regardless of whether it was delivered.

6. Authority of Advocates to Modify Applications:
The Commission examined whether an advocate can modify an application on behalf of an applicant. It was concluded that while an advocate can make lawful submissions, any modification of duty liability must be signed by the applicant or be supported by a proper authorization, such as a Power of Attorney.

7. Requirement of Applicant's Presence before the Commission:
The Commission has the authority to insist on the presence of the applicant if deemed necessary to verify the bona fides of the application. This power ensures that the Commission can ascertain the truthfulness and cooperation of the applicant.

Conclusion:
The applications of Shri Sadik Sadruddin Chunara and Shri Dattatray C. Bodke were rejected as they did not fulfill the duty liability condition under Section 127(1)(b). The application of Shri Pravin R. Shah was also rejected due to conflicting disclosures and failure to make a full and true disclosure of duty liability. The Commission emphasized that procedural defects could be remedied, but true disclosure is fundamental for admission of settlement applications.

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