9911796707
TMI Blog2010 (7) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent No.3 is not in consonance with the order passed by this Hon'ble Court in SCA No.5360 of 2010 and further be pleased to modify/amend/clarify the said order passed by the respondent No.3 and delete the condition of furnishing bank guarantee as well as payment of differential amount as the petitioners are ready and wiling to furnish bond, undertaking to the satisfaction of this Hon'ble Court AS WELL as to the Customs Dept. and petitioner is ready and wiling to pay the custom duty as per the MOA entered into by petitioner No.1 with petitioner No.2 on the basis of which present bill of entry has been filed and permit the petitioner to remove the wreck of D.V. Platinum-II which is sinking in the sea of Gopnath at Sartanpura which has been declared as landing area under Sec.8(a) of The Customs Act by order dated 15.3.2010 for the reasons stated in the Memo of Petition and in the interest of justice; 2. Pending admission, hearing and final disposal of the above Special Civil Application, to direct the respondent No.3 not to restrain the petitioner from removing the wreck of D.V. Platinum-II from the sea and to store it at landing area at Sartanpur declared by the Custom De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the order dated 31.3.2010 issued by the respondent no.3 by which the respondent no.3 has directed to file Bill of Entry on the basis of first MOA which the petitioner has entered into with M/s. Haryana Ship Demolition Pvt. Ltd. which stands cancelled and further be pleased to direct the respondent no.3 to assess the Bill of Entry which petitioner no.2, the intending purchaser of the petitioner has sent by RPAD to the respondent no.3 on 22.1.2010 keeping in mind the order passed by the Gujarat Maritime Board declaring D.V. Platinum-II as wreck and price declared by the petitioner in the MOA dated 23.12.2009 for the reasons stated in the Memo of Petition and in the interest of justice; OR IN THE ALTERNATIVE; To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent no.3 to assess the bill of entry considering the value declared in the MOU dated 23.12.2009 for the reasons stated in the Memo of Petition and in the interest of justice; (C) To issue a writ of mandamus or a writ in the nature of mandamus or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o rights and contentions of the parties to agitate in appropriate proceedings, if so warranted. 6. Upon completion of the aforesaid proceedings, learned Counsel for respondent Nos. 2 and 3 has informed the Court that the vessel (Wreck) shall be permitted to be taken to the landing place in accordance with law subject to the final assessment being framed in accordance with law. 7. In light of the aforesaid arrangement worked out by the parties, the Court is not required to deal with the respective contentions on merits leaving it open to the parties to agitate the same in accordance with law in appropriate proceedings, if need be. Respondent Nos. 2 and 3 shall complete the provisional assessment not later than 14.05.2010 and the petitioners are directed to ensure that requisite formalities, including payment of duty and furnishing of security/bond for differential duty is also completed not later than 15.05.2010. 8. In light of the aforesaid arrangement worked out by the parties remaining prayers are not required to be considered and the petition stands disposed of accordingly with no order as to costs. 3. Pursuant to the said order, the concerned Assistant Commissioner, in exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance on the payment of Rs.1,71,38,077/- being the amount of duty as well as on furnishing requisite bond for an amount of Rs.2,03,14,534/- and furnishing security by the petitioners in the form of materials worth Rs.2,05,00,000/- to the satisfaction of the respondents Authority. These directions should be complied with by the Authority not later than 21st June, 2010, if the petitioners satisfy the above conditions. The petitioners are directed to place on record xerox copy as well as typed copy of Bills of Entry along with letter dated 10.5.2010. Direct Service is permitted." 5. The said order subsequently came to be amended vide order dated 20.05.2010 which reads thus: "1. Mr. Bharat T. Rao, learned advocate appearing for the petitioner has filed this note for speaking to minutes. He has submitted that in unnumbered para-5 on page-3 of the order this Court has observed as under:- "The respondents are directed to permit the clearance... ..." He has submitted that the words "clearance of the rack of dead vessel platinum II" be inserted in the order. He has further submitted that these words are missing and hence they are required to be inserted. 2. Having considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the duty that may be finally assessed and the provisional duty; to deposit by way of challan with the proper officer, the sum of Rs.40,62,907/- being 20% of the provisional duty in terms of Regulation 2 of the Regulations; and to furnish bank guarantee issued by any nationalized bank for the balance amount of differential duty, that is, Rs.1,62,51,627/- (Rs.20314534/- - Rs.4062907/-) in favour of the President of India, through the said Assistant Commissioner, in terms of Regulation 4 of the said Regulations. The said order is assailed on the ground that the Regulations provide only for surety or security in the nature of security/bond as well as undertaking and that it is not permissible for the Customs authorities to demand security by way of Bank Guarantee. The controversy before the Court is therefore, as to whether under the Regulations, it is permissible for the concerned officer to demand security by way of bank guarantee. 9. The controversy has to be considered in light of provision of Section 18 of the Act, which relates to the provisional assessment of duty. Under sub-section (1) of Section 18 of the Act the statute provides that without prejudice to the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process stipulated by Section 18 of the Act read with the Regulations when one considers the following extracts from the said communication : "Pending production of original commercial invoice, bill of sale, document evidencing payment of purchase price to the sellers and any other document/information required by the department for proper assessment of duty on the vessel, the E/E shall be provisionally assessed based on the price declared by you in terms of Section 18 read with Customs (Provisional duty assessment) Regulation, 1963, subject to your furnishing bond, bank guarantee as narrated hereinafter. For the purpose of determining differential duty involved on the vessel under reference due to difference between declared value and the value under Section 14, the Customs Duty is worked out in the Annexure attached to this letter, based on the price of US $ 50,00,000/- prevailing at the time of importation of the vessel at Alang Anchorage + Breaking Charges of US $ 70000 declared in the bill of entry filed which comes to Rs.3,74,52,611 and the differential duty thus comes to Rs.2,03,14,534/- (being difference between estimated duty to be finally assessed and provisional duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
