9911796707
TMI Blog2002 (9) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... import included 248 pieces of bearings valued at Rs. 9,22,116/- (CIF). The applicant discharged the export obligation and submitted the original Import/Export DEEC Book etc. to the DGFT for redemption of Bank Guarantee. However, since the FOB value actually realised was only Rs. 3,06,12,320/-, the applicant requested the DGFT to reduce the CIF value proportionately to Rs. 43,41,140/-. The CIF value for import of these items were reduced vide amendment sheet II, dated 24-4-1998. The validity of the licence was extended up to 21-5-1999 vide amendment sheet IV dated 22-1-1999. The applicant signed a MOU with M/s. Nippon Bearings (India) for transfer of the said licence. The MOU was signed on 3-4-1999 by Shri Ashwin Mehta on behalf of M/s. Nippon and Shri Shantilal P. Shah (SPS) on behalf of the applicant. Before the licence could be endorsed as transferable Shri Mehta approached Shri Shah and convinced him that pending transferability, they would arrange to show a high seas sale in favour of the applicant so that the goods (240 pieces of bearings) could be cleared duty free. Accordingly, two high seas sale agreements dated 22-3-1999 were prepared in the name of M/s. Nippon and M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the 1st show cause notice dated 22-6-2000 covers bearings, which were seized at New Delhi after they were cleared under the applicant s licence which was already transferred to M/s. Nippon on 14-12-1999. The duty demanded in this show cause notice is Rs. 65,78,106/- from several persons including the applicant. The applicant is not admitting this amount as the imports were not of the applicant but of M/s. Nippon Bearings (India). The 2nd show cause notice dated 26-7-2000 covers the seizure of bearings before clearance. The goods were seized by the DRI on 21-12-1999 and the show cause notice for these goods made out by them claims penalty on several parties including the applicant. No duty is demanded in this show cause notice. The applicant is not admitting this as the imports were of M/s. Nippon. The 3rd show cause notice dated 16-8-2000 covers import of 240 pieces of bearings which were imported by M/s. Nippon but cleared through Customs in the name of the applicant by making a Highseas Sale Agreement with the applicant using the original licence dated 28-11-1996 of the applicant. The applicant is admitting Rs. 15,94,565/- which is equal to the duty demanded in the 3rd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the 1st and 2nd show cause notices the applicant has not filed the Bills of Entry hence the application in respect of these two show cause notice does not merit admission. In the case of the 3rd show cause notices the application can be admitted since they have filed the Bill of Entry and thus fulfils the requirements as provided under Section 127B of the Customs Act, 1962. 9. The Commission, vide Interim Order dated 7-8-2001, observed that the applicant has not filed any Bill of Entry in respect of show cause notices dated 22-6-2000 and 26-7-2000. The Bills of Entry have been filed by other parties. Strictly speaking, since the applicant is not an importer in relation to these two Bills of Entry, duty of Customs is not payable by him and demanding duty in respect of one show cause notice from the applicant by the Revenue is not warranted. Unless the person is an importer or holds himself as importer duty is not payable by him. The provisions of the Customs Act, 1962 is very clear in this respect. Besides, Section 127B of the Customs Act, 1962 provides the person who can file an application before the Settlement Commission. It stipulates that the importer, exporter or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right in admitting for adjudication, the settlement application only in respect of the third show cause notice since it is only that application for settlement which satisfied the requirement of Section 127B as reproduced above. The petitioners accept the fact that a bill of entry has been filed in respect of the goods covered by this show cause notice. 14. In the result, the writ petition is dismissed. The respondents are allowed to withdraw the amount deposited by the petitioners in this Court as per the order of the Settlement Commissioner. The respondents undertake to deposit the same with the Settlement Commissioner within a period of two weeks in terms of the order of the Settlement Commissioner. 13. The final hearing in the case was held on 29-8-2002. 14. The applicants M/s. Amrit Laxmi Machine Works and Shri N.K. Brahmachari were represented by S/Shri N.K. Brahmachari, Managing Partner and V.S. Nankani, Advocate. 15. The learned Advocate re-iterated the brief facts of the case. He further submitted that pursuant to the Order and direction of the Hon ble High Court the applicant had deposited the admitted duty liability of Rs. 15,94,565/- in the High Court. Receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant has made a full and true disclosure and has also paid the duty in pursuance of the directions of the Hon ble High Court. The import has been made under Notfn. No. 80/95, dt. 31-3-1995 and therefore interest is payable by the applicant as referred to in the notice. Considering the facts and circumstances of the case the terms of settlement are as follows : Duty : The case is settled for a duty of Customs of Rs. 15,94,565/- (Rupees fifteen lakhs ninety-four thousand five hundred sixty-five only). The applicant has paid the said amount on 20-9-2001 to the Hon ble Bombay High Court. The said amount was withdrawn by the Revenue in pursuance of the directions of the Hon'ble Bombay High Court and deposited in the Customs Treasury. The said amount is appropriated towards the admitted duty liability and the Commissioner of Customs shall pass appropriate order in that regard. Fine and penalty : The applicant has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure. In view of this immunity from fine and penalty is granted to the applicants. Interest : The applicant has derived a monetary benefit by importing the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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