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TMI Blog2003 (5) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ort was made under Notification No. 43/2002-Cus., dated 19-4-2002 without payment of any Customs duty. The applicants had filed Bills of Entry and assessed the goods at nil rate citing the aforesaid notification. The applicants were to use the imported product in the manufacture of goods to be exported. It has been admitted by the applicants that they have sold part of the goods due to financial constraints. The Revenue have seized certain quantity of imported goods and, however, allowed release against deposit of duty. The value of goods imported against the aforesaid 7 advance licences comes to Rs. 20,92,37,868.70. All these goods were cleared against 5 Bills of Entry. The Customs duty foregone consequent to assessment at nil rate in respect of Bills of Entry was Rs. 11,36,95,189.86. The applicants in their applications have admitted the duty liability as indicated in the SCN but have requested an adjustment against admitted duty already deposited by them. Para 21 of the SCN reads as below : "21. Now, therefore, the said importer, it's Directors S/Shri Mahendra Patni, Mukesh Patni and Ashok Rai Jain, M/s. Vijay Engineering Works, M/s. Bengal Hammer Industries ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on M/s. Vijay Engg. Works and M/s. Bengal Hammer Industries (P) Ltd. for their active involvement in the above mentioned illegal trade." A copy of the applications filed by the applicants was sent to the DRI, Kolkata. The said authority in para 8 has submitted as below : "8. From the aforesaid section, it is revealed that the Settlement Commission can entertain applications for settling the disputes only in those matters where the importers/exporters had not made full and true disclosure of his duty liability before the proper officer. Here in the present case, M/s. Ceean Commerce Pvt. Ltd. had already declared the goods imported by them and also duty liabilities in the aforesaid Bills of Entry filed by them in this regard. The said facts have not been disputed by the importer. The importer was under an obligation to fulfil the export obligation, as stipulated in Notification No. 43/2002-Cus., dated 19-4-2002 to get the benefit of the scheme. But the importer did not fulfil the stipulated export obligation, and instead sold the duty free imported raw material in open market. So as per bond executed in terms of the said notification the said importer is under an obligation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of duty and a bond executed by the applicant is not an assessment document and, therefore, does not come within the meaning of the term "case". The Bench further explained that Bill of entry is the assessing document and this document only discloses 'nil' duty liability by the applicant before the proper officers. As 'nil' liability has been disclosed at the time of import, therefore, the applicants are now admitting over Rs. 11 crores as duty liability and this means that additional liability is now being disclosed before the Commission, which was not earlier disclosed by the applicant. 9. The Advocate for the applicant informed the Bench that the objections raised by the Revenue to the admission of the case have already been considered and rejected by Hon'ble Commission in the case of M/s. Bell Granito and in the case of M/s. Sprint Services Pvt. Ltd. 10. The Commission has gone through the case records and the submissions made by the learned Advocate of the applicants and learned representative of Revenue. 11. From the facts of the case as enumerated supra it is seen that the applicants have filed 5 Bills of Entry. The applicants have claimed clearance of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use have to be read along with proviso which refers to filing of bill of entry and receipt of show cause notice in relation to customs and 'filing of returns' in relation to income-tax. "9.9 Thus the assessee is required to state details of imports and attendant details not disclosed at the time of assessment of the bill of entry and then how the liability of additional duty of Customs arises. The liability of additional duty could be with reference to any reason including non-fulfilment of conditions attached to a notification. The term liability to pay tax has been explained in the Law Lexicon by Venkataramaiya at page 1338, it states as below : "The phrase 'liability to pay tax' can be used in two senses. Firstly, it may refer to primary liability of any assessee to tax which takes place as soon as the taxing event has occurred. This liability is determined by the legislation and the existence of relevant circumstances.... Secondly the phrase 'liability to duty' is used in the sense that after a particular liability is assessed against an assessee, he becomes liable to pay that tax, "What is referred to in Section 127B of the Customs Act or Section 245C of the Income-tax Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;Considering the facts and circumstances of the case and also the laws in Chapter XIVA of the Customs Act the applications are allowed to be proceeded with under sub-section (1) of Section 127C of the Customs Act. The applicant shall pay the admitted duty liability of Rs. 4,36,35,189.86 (Rs. 11,36,95,189.86 Rs. 7,00,60,000/-) within 30 days of the receipt of the copy of this order. The Commissioner shall adjust the amount of Rs. 7,00,60,000/- towards admitted liability of duty of Customs.
15. Request of the applicant to pay the duty in instalments is not acceded considering the balance sheet of the applicant for the year 2002-2003 and other evidences on record. The seized goods valued at Rs. 8,55,65,533.64 is allowed to be released on execution of a bond of value of Rs. 8.50 crores and a bank guarantee of Rs. 1 crore. The goods shall be allowed to be released within 7 days of execution of bond and bank guarantee to the satisfaction of the Commissioner of Customs (Port) Kolkata. DRI shall render necessary assistance to Commissioner of Customs, Kolkata in this regard.
16. Attention of all concern is drawn to sub-section (2) of Section 321 ibid. X X X X Extracts X X X X X X X X Extracts X X X X
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