9911796707
TMI Blog1999 (7) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... Vivad Samadhan Scheme, 1998, hereinafter referred to as the Scheme, and the legal submissions in respect thereof. 4. The petitioner claims to have imported tractor spares and defective/second hand diesel engines from Japan. The petitioner had initially claimed that the import of the goods was covered as seconds under para 27(1) of the Hand Book of Procedures, as amended by Public Notice No. 296 PN, dated 12th June, 1995. The Customs Authorities reached the conclusion that the imported goods were not seconds as is commonly understood in the trade as referring to the goods of the second quality or defective material, which arise during the course of manufacture of the prime quality goods. In other words, these were not seconds having some manufacturing defect but on the other hand were second hand used diesel engines imported for the purposes of reconditioning and repair for giving a further lease of life. The Customs Authorities held these to be covered under para 29 of the Indian Export Policy, for the import of which, a valid import licence was required but had not been obtained. The goods were, therefore, held to be imported in contravention of law and liable to confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and ensure recovery of arrears of Revenue, locked in litigation. Counsel for the petitioner submits that considering the provisions of the Scheme and the language used in Form 2-B, the requirement was the payment of 50% of tax arrears irrespective of the same being in dispute or not. Counsel for the petitioner relies on the questions and answers concerning the Scheme, published by the Department of Customs and Central Excise, Government of India. Reliance is placed in particular on Answer to Question No. 5 : Qn. No. 5. What are the benefits available under the scheme? Ans. The declarant involved in dispute with the Deptt. in a case involving arrears of taxes including duties, fine, penalties or interest can settle the case by payment of an amount as indicated in the scheme depending upon whether it involves one or more of duties, fines, penalties or interest which are still in arrears as on the date of filing the declaration. The settlement amount essentially is payable as per the following provisions. Category of case Amount payable for settlement (a) In a case involving arrears of duty whether or not it involves arrears of fine, penalties or int- erest. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheme has the word determined before as due or payable in the definition of tax arrears even in the case of indirect tax enactment. However, the controversy as to the correct text need not detain us. It is not determinative of the issue and is not of consequence in the facts of this case and in view of the interpretation being given by us to the various provisions of the scheme. 12. Learned Counsel for the respondent refuted the submissions of the petitioner. It is urged on behalf of the respondent that the provisions of the Scheme ought to be given a purposive interpretation and are not to be interpreted in a manner so as to defeat the entire purpose and object sought to be achieved by the scheme. It was urged that a collective reading of Section 87(m)(ii) and Section 88(f) of the Scheme show that the amount of duties, cesses, fine or penalty are those which stood determined as on 31st March, 1998. In other words, the tax arrears are those which had been the subject matter of any litigation or dispute or adjudication. Reliance on questions and answers by the petitioner was said to be misconceived as the same could not govern and prevail over the provisions of the scheme. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est, fine or penalty specified in this sub-clause on or before the date of making a declaration by him under Section 88 which includes any deposit made by him pending any appeal or in pursuance of a Court order in relation to such duties, cesses, interest, fine or penalty, such payment shall not be deemed to be the amount unpaid for the purposes of determining tax arrear under this sub-clause; (n) All other words and expressions used and not defined in this scheme but defined in any direct tax enactment or indirect tax enactment shall have the meanings respectively assigned to them in those enactments." Section 88 : Subject to the provisions of this scheme, where any person makes, on or after the 1st day of September, 1998 but on or before the 31st day of December, 1998, a declaration to the Designated Authority in accordance with the provisions of Section 89 in respect of tax arrear, then, notwithstanding anything contained in any direct tax enactment or indirect tax enactment or any other provision of any law for the time being in force, the amount payable under this Scheme by the declarant shall be determined at the rates specified hereunder, namely : .. (f) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade under Section 88. It would be seen from the foregoing that Kar Vivad Samadhan Scheme seeks to provide a quick and voluntary settlement of tax dues outstanding and in dispute as on 31-3-1998, both in various direct tax enactments as well as indirect taxes enactments by offering waiver of a part of the arrear taxes and interest and providing immunity against institution of prosecution and imposition of penalty. The assessee on his part shall seek to withdraw appeals pending before various Appellate Authorities and Courts. The scheme came into force on the first day of September, 1998 and ends on 31st day of December 1998. 15. The scheme is applicable to tax arrears outstanding as on 31-3-1998. A person desiring to avail the scheme is required to file a declaration in the prescribed form before the Designating Authority notified for this purpose. The Designated Authority shall pass an order within sixty days of the declaration determining the amount payable in accordance with the provisions of the scheme and grant a certificate indicating the particulars of tax arrears and the sum payable and intimate the same to the declarant. The declarant will pay the sum payable as determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings for confiscation of the goods were initiated in accordance with the statute i.e. Section 125(2) of the Customs Act, 1962. Petitioner was given an option of payment of redemption fine and penalty in lieu of confiscation. Petitioner had challenged the quantum of redemption fine and penalty at various levels culminating it in dismissal of appeal by the CEGAT and confirmation of the redemption fine and penalty as imposed. It is significant that the goods stand confiscated and it is only when the petitioner exercises its option, by payment of redemption fine and penalty, that the question of release of goods would arise. Petitioner hitherto before, neither challenged nor could challenge the payment of customs duty, which being a statutory obligation, on import of goods is payable. Petitioner wishes to avail of the benefit of redemption of confiscated goods. Neither the classification of the goods nor the rate of duty applicable or the amount thereof has been in dispute. In fact, there has been no dispute or controversy whatsoever in respect of the amount of customs duty payable. Accordingly, the present case would clearly fall within Section 88(f)(1) of the scheme, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
