2005 (10) TMI 483 - Commission - Customs

Issues Involved:

1. Admission of the settlement application.
2. Immunity from interest and prosecution.
3. Jurisdiction of the Settlement Commission.
4. Contractual obligation to pay interest under the bond.

Issue-wise Detailed Analysis:

1. Admission of the settlement application:

The applicant, M/s. Rivaa Exports, engaged in Export-Import trade, was issued various Advance Licences under the EXIM Policy, 1997-2002. They imported Grey Polyester Fabrics under 13 Advance Licences and fulfilled export obligations for 8 licences but failed to do so for 5 licences despite extensions. A Show Cause Notice was issued demanding duty of Rs. 13,16,216/- and invoking interest provisions under the Customs Act, 1962. The applicant deposited the entire duty under protest and filed for settlement under Section 127B of the Act, accepting the duty liability. The Revenue expressed no objection to the admission and final disposal of the application.

2. Immunity from interest and prosecution:

The applicant sought immunity from interest and prosecution, arguing that they had applied for revision/modification of SION and had fulfilled export obligations in terms of value. The Revenue objected, citing the Hon'ble Calcutta High Court's decision that payment of interest under bond is a contractual obligation, and the Settlement Commission has no power to grant immunity from interest. The applicant cited various case laws to support their plea for immunity, arguing that interest is compensatory and not penal, and that the bond under the DEEC scheme cannot be termed as contractual. The Bench, however, pointed out that the Calcutta High Court's decision is binding, and interest is leviable under the bond executed by the applicant.

3. Jurisdiction of the Settlement Commission:

The Revenue opposed the admission of the application, citing a Board's circular stating that the Settlement Commission does not have jurisdiction under Section 127B(1) of the Act. However, the Bench referred to previous decisions, including "In Re: Bell Granito Ceramica Ltd." and "Mahendra Petrochemicals Ltd. v. UOI," which held that the Settlement Commission has jurisdiction in such cases. Thus, the question of jurisdiction was settled in favor of the Commission's authority to entertain the application.

4. Contractual obligation to pay interest under the bond:

The applicant contended that the interest under the DEEC scheme is not contractual but a sovereign power under fiscal statutes. They argued that the bond executed under the DEEC notification cannot be termed as contractual because it is administered by the Ministry of Commerce and Ministry of Finance. The Bench, however, noted that none of the cited case laws dealt with the issue of contractual obligation to pay interest under the bond. The Bench emphasized that the decision of the Hon'ble Calcutta High Court, which held that interest under the bond is contractual, is binding. Consequently, interest is leviable, and the applicant's refusal to accept the interest liability was deemed an act of non-cooperation.

Conclusion:

The Bench concluded that due to the applicant's refusal to accept the interest liability, the case is sent back to the proper officer for disposal in accordance with the provisions of the Act, as if no application under Section 127B had been made. All concerned parties were informed accordingly.

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