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TMI Blog2006 (5) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... eas, was exporting cheap material i.e. goods under the Duty Entitlement Passbook Scheme (DEPB) by misdeclaring the same as bulk drugs, the officers of DRI, Mumbai Zonal unit, identified the Shipping Bill of the said exporter from the EDI system, Jawaharlal Nehru Custom House (JNCH), Nhava Sheva. It was found to be a Loose Container Load cargo of Amoxycillin Trihydrate covered under the Shipping Bill No. 3295430 dated 19-2-2005 which was immediately put on hold. The description of the goods mentioned in the said Shipping Bill was 160 packages of Amoxycillin Trihydrate (compacted) BP, stuffed in container No. GATU-8514129. The invoice number mentioned in the Shipping Bill was MO/028/04-05 dated 1-2-2005 and AR4 No. 555 dated 13-11-2004. The total FOB value of the goods was declared as Rs. 43,41,935/- and total quantity as 4000 kgs. The invoice indicated the manufacturer of the goods as M/s. Aurobindo Pharma Ltd. The said container was examined on 26-2-2005 and it was found to be stuffed with goods of different packing, covered under various Shipping Bills. The container was de-stuffed completely and the goods covered under the said Shipping Bill No. 3295430 dated 19-2-2005 was se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of Rs. 3.53 Lakhs. 5. After the investigations a Show Cause Notice vide F.No. DRI/MZU/NS/INV-07/04-05 dated 24-8-2005 was issued to the applicants under the Act read with Foreign Trade (Development and Regulation) Act, 1992 and Foreign Trade (Regulations) Rules, 1993 proposing to:- (i) Confiscate the impugned goods seized on 2-3-2005 having total declared FOB value of Rs. 43,41,935/- (ii) Confiscate the goods exported vide 16 Shipping Bills having total declared FOB value of Rs. 6,68,64,980/-. However the said goods are not available for confiscation. (iii) Reject the total DEPB benefit of Rs. 4,77,612/- sought to be claimed against Shipping Bill No. 3295430 dated 19-2-2005 against FOB value of Rs. 43,41,935/- (iv) Reject the total Customs duty foregone of Rs. 97,69,199/- sought to be claimed as per the 11 DFRC licences issued against exports made under the impugned 16 Shipping Bills. (v) Confiscate the consignment of 26 MT of Beta Napthol imported under Bill of Entry No. 797836 dated 4-2-2005. However as the goods are already cleared those are not available for confiscation. (vi) Demanding from M/s. Mars Overseas the Basic Customs duty of Rs. 3,52, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings at the investigation stage and leading to the issue of Show Cause Notice, can file an application for settlement especially when the address given by him are found to be bogus? (b) If the answer to Question No. (a) is in the affirmative how can the Revenue be satisfied whether the applications have been signed by the persons concerned as their signatures are not verifiable. (c) Whether non-appearance of the applicants before the Revenue can also be treated as non-cooperation with the Bench, debarring filing of such applications? (d) Whether persons to whom Show Cause Notices have been sent but returned un-delivered can come before the Settlement Commission? (e) Whether the ld. Advocate can on behalf of his client (co-applicant) modify the original application to admit duty liability earlier admitted by the applicant or whether such modification would require the signature of the applicant itself? (f) Whether the Bench can insist upon the presence of the applicant who has been absconding? 10. The ld. Advocate for the applicant vide written submissions dated Nil have given the point-wise reply to the aforesaid questions as below:- (a) Fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst whom detention orders under the COFEPOSA Act, 1974 were issued, and who were allegedly absconding for evading the service of the detention order. (d) The proviso to sub-section (1) of Section 127B of the Act, supposes only the issuance of Show Cause Notice to the applicant, in relation to Bill of Entry. Whether the same was delivered or not, is not material therefore? What is not provided in the statute, cannot be read into it, to circumscribe a beneficial provision? (e) An advocate represents the case of his client as an Authorised Representative and can make such lawful submissions which are in the interest of client and the settlement of the case. A submission made by the Advocate/Counsel of the applicant is binding on the applicant, unless the applicant himself states that the advocate has acted contrary to his instructions or contrary to law. However, if this Hon ble Commission desires, the applicant no. 2 can also file his affidavit in support of the statement made by his Counsel. (f) The Bench has enormous powers, and can surely insist upon the presence of an applicant who has been absconding. The Bench can impose any condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Revenue and is not willing to disclose his address even in the application, the Revenue has no manner of tracing him out to verify his signatures. (c) Strictly speaking, non-appearance of the applicant before the Revenue will amount to non-cooperation with the Commission. It is needless to mention that the proceeding before the Commission is not a one-way traffic. Under the existing provisions, the Commission is required to settle the case not only after hearing both the sides, (i.e., the Revenue and the applicant) but also after considering all the relevant materials found by the Revenue through inquiry and investigation. In the present case, due to non-appearance and non-cooperation of the applicant with the Revenue, it is quite possible that the Revenue could not get all the relevant materials required for settling the case. (d) In terms of Section 127B(1) any importer, exporter or any other person may approach the Settlement Commission to get his case settled only after he has received the Show Cause Notice, subject however, to fulfilment of other conditions. In the present case, the Show Cause Notice sent to the known address of the applicant has been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the objections, other than procedural objections are also not very relevant for considering admissibility of the applications. To wit, the Apex Court s judgement in Alka Subhash case (supra) held that jurisdiction under Article 226 and Article 32 of the Constitution of India is discretionary in nature. As against this position, entertainability of an application under Section 127B of the Act relating to a case is not discretionary but subject to fulfilment of the mandatory conditions and provisos laid therein. Once those conditions are fulfilled and the case is not barred by any of the provisos contained in the said section, an application becomes eligible to be entertained. Therefore successfully evading detention order issued under the COFEPOSA against a person connected to a case under Clause (b) of Section 127A of the Act cannot be held to be a bar from entertaining an application for settlement .. 14. We are of the view that the ratio of the aforesaid decision would equally apply in the present case before us as there is no stipulation in the Act to prevent a person from making an application before the Settlement Commission who is absconding and had never appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions dated 10-1-2006 have inter alia stated as below:- Sadik Sadruddin Chunara is alleged to be the mastermind behind the entire misuse of the schemes. For the purposes of settlement, the allegations in the SCN are not contested. The claims against the DFRCs and DEPBs allegedly fraudulently obtained is given up. The applicants have also agreed to pay the Customs duty of Rs. 3,52,885/- demanded in the SCN. Though Shri Chunara has, being the alleged mastermind behind the fraud, offered to pay this amount, as the SCN calls upon Mars Overseas to do so, and Mars Overseas is also before this Hon ble Commission, Mars Overseas is also willing to make this payment, should this Hon ble Commission so direct . As against these disclosures made by Shri Sadik Sadruddin Chunara, Shri Pravin R. Shah in Para 6 of his application has submitted as below:- However, it is alleged in the Show Cause Notice that Shri Sadik Chunara was the mastermind behind the fraudulent exports. It is also alleged that he opened my firm M/s. Mars Overseas, wherein I was made the proprietor. I categorically say that the allegations levelled against Shri Sadik Chunara are false. I am in no way concerned wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the allegations levelled in the Show Cause Notice are accepted and that he may be allowed to pay the Customs duty of Rs. 3,52,885/- as demanded therein. This deposition has also been confirmed by the ld. Advocate in his written submissions dated 10-1-2006 as extracted herein above. Apparently therefore the deposition made by Shri Pravin R. Shah cannot be held as a true disclosure. Since he had never been examined by DRI during the investigations, the truthfulness of the disclosure made by him in his deposition neither can be commented upon by DRI nor ascertained by the Commission. Thus we find that the fundamental condition of making a full and true disclosure by the applicant while filing the application u/s 127B of the Act is not fulfilled. In the circumstances the application of Shri Pravin R. Shah cannot be entertained and is accordingly rejected under Section 127C(1) of the Act. In so far as the applications filed by Shri Sadik Sadruddin Chunara and Shri Dattatray C. Bodke are concerned, there being no duty liability on them, the condition laid down under Section 127(1)(b) is not fulfilled. Hence their applications are also rejected under section 127C(1) of the Act. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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