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TMI Blog2004 (2) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... 49/- in the aforesaid SCN issued to them by ADG, DRI and the duty demanded and confirmed by the Deputy Commissioner of Customs, Customs House, Vizag against their agent M/s. A.V. Bhanojirow, Garuda, Visakhapatnam vide this Bench s Order dated 10-9-2003. Commissioner (Inv.) submitted his report C. No. VIII/48/1/2003-SC, dated 24-11-2003. 3. Thereafter, the applicants were heard on 7-1-2004 when Shri A. Janakiraman, Chartered Accountant appeared as representative of the applicants, while Shri Bharath Raj J. Mudaliar, IO, DRI, Mumbai appeared for the Revenue. During the said hearing the Revenue was directed to file certain further submissions before 16-1-2004, with copy to the applicant for their further response, if any. DRI, Mumbai Zonal Unit has since filed their further report dt. 9-1-2004, on which the representative of the main applicant company has also given further response vide their letter dt. 24-1-2004. 4. Though the basic facts for the case for settlement are brought out in this Bench s Admission Order No. 29/2003-Cus. referred to above, to repeat the issue in brief for convenience, the main applicant company had imported Global Marine Distress Safety System (GMDSS) e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vizag wherein it is stated, inter alia, that UNDERSTAND VIZAG CUSTOMS RECD SOME OBJECTIONS FROM DRI ON THE SUBJECT FOR THEIR EARLIER PRACTICE OF ALLOWING PLACEMENT OF IMPORTED SPARES ON BOARD COASTAL VSLS WITHOUT PAYMENT OF DUTY. ALSO ATTENDED CUSTOMS PUBLIC GRIEVANCE COMMITTEE MEETING AND STRONGLY TOOK UP MATTER WITH COMMISSIONER OF CUSTOMS REQUESTING THEM TO RE-ISSUE AND RESTORE OLD FACILITY COMMISSIONER OF CUSTOMS INDICATED THEY WILL RE EXAMINE ISSUE AND AVD US OUTCOME AT THE EARLIEST. ALSO INDICATED IF THEY ARE NOT ABLE TO CONSIDER OUR RQST COMMISSIONERATE MAY TAKE UP MATTER WITH CBEC FOR DOING NEEDFUL. It was therefore, contended, that there cannot be any suppression or wilful misstatement on their part, where the earlier practice adopted was stopped by Customs Vizag after investigation by DRI. They also drew attention to the statement dated 22-6-2001 of Shri GVR Mohana Rao, Partner of their Agent company wherein he had deposed inter alia; To the best of my memory we had attended 2 cases where the equipment was transferred from ship to ship in one case, i.e. Prabhu Mihika. GMDSS equipment landed from P. Satram in Calcutta sent in bond to Vizag, kept in bonded warehouse ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for exportation under Section 51 is made by the proper officer of Customs, and contended that if the date of conversion of the vessel to the foreign run is deemed to be the date of export, the instant claim for drawback is hit by time-bar. He also referred to the decision of the Apex Court in the case of Sun Industries [1988 (35) E.L.T. 241] which lays down that only if the title of the export goods passes on to the purchaser the export is complete, whereas in the subject case, the title over the GMDSS equipment does not pass on from the hands of the applicant as the said equipments are fitted on to the vessels of the applicants themselves. Finally he also referred to the decision of the Hon ble Supreme Court in the case of M/s. Omkar Overseas Limited v. Union of India [2003 (156) E.L.T. 167 (S.C.) = 2003 (110) ECR 477] wherein the Apex Court observed in relation, to a rebate claim that benefit of rebate can be denied only if there is a short payment by reason of fraud, cohesion or wilful mistake of facts. It was pleaded in the instant case the equipments in question were purchased and imported into India for their coastal vessels, namely Prabhu Jivesh and Prabhu Mihika, but while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la v. U.O.I. wherein the Hon ble Court allowed drawback in a similar matter, where the payment of net duty after adjusting drawback was made after a lapse of considerable time from the date of re-export. 9. The Bench has considered the pleas put forth by the applicants. It is found that the SCN propose to demand a duty of Rs. 65,71,008.00. However, the applicant has admitted a total duty liability of Rs. 59,65,059/- which the Revenue also accepts as the net duty liability. DRI in its report dated 9-1-2004 has specifically reported that they have .........no objection for the settlement of the case for the duty amounting to Rs. 59,65,059/-, which has been deposited by the applicant . Thus, the Bench finds that the main applicant M/s. Tolani Shipping Company has admitted their full and true duty liability acceptable to Revenue. They have also fully cooperated with the proceedings before the Commission and thus become eligible for consideration of immunities sought for, irrespective of their conduct prior to approaching the Settlement Commission. In so far as interest is concerned, the applicant has clearly indicated that the previous practice was to allow removal under transhipmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal duty accepted minus drawback, if any, due. This is without prejudice to the applicants right to seek drawback at the appropriate forum and the Bench, refrains from commenting on the merits of the drawback claim of the applicant. 11. Finally, since the main applicant has been found to be eligible for immunities as mentioned above, the co-applicant Shri A.K. Srivastava, Executive Director also becomes eligible for the same or similar immunities. 12. Accordingly, taking into account the above facts, the applications are settled in terms of Section 127C(7) of the Customs Act, 1962 on the following terms and conditions :- (1) Duty liability on M/s. Tolani Shipping Company Limited is settled at Rs. 59,65,059/-. Since even as per the report of the DRI the said amount has been deposited and the same is ordered to be adjusted against the above settled duty liability. No further amount needs to be paid. (2) Immunity is granted from interest, penalty, prosecution and fine in lieu of confiscation under the provisions of the Customs Act, 1962. (3) Immunity is granted to Shri A.K. Srivastava, Executive Director of M/s. Tolani Shipping from penalty and prosecution under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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