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TMI Blog2003 (2) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... free in terms of Customs Notification 30/97 dated 1-4-97 by filing B/E 57855 dated 14-10-98. Based on specific intelligence, the officers of DRI, Regional Unit, Hyderabad visited the Regd. Office of the applicant on 6-4-2002 and the factory premises of the applicant on 8-4-2002. The officers obtained details of the Adv. Licence in question and other relevant documents. On their visit to the factory premises, the officers found that there was no stock of imported LAM coke in any form, including rejects/scrap, even though there was confirmation of receipt of imported LAM coke of 19944.28 MTs into the factory premises. A statement was recorded from Mr. E. Ravi Keshav, GM of the applicant company on 12-4-2002. In his deposition, apart from giving the technical details, he also confirmed import of LAM coke and its receipt into the factory premises. He had also stated that the applicant had executed a bond before Customs, Chennai for an amount of Rs. 3,85,50,000/- with a BG for Rs. 1,28,50,000/-. He further confirmed the receipt of the imported material into the factory from 17-10-98 to 24-12-98 and the nil stock balance of the imported material, imported against the said advance licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that the applicant is still to pay an amount of Rs. 1,49,940/-. In the comments it is reiterated that as per condition No. (ii) of Customs notification 30/97 dated 1-4-97, the applicant is liable to pay interest @ 24% per annum along with the duty amount. There is no comment either from the DRI or from the Respondent, with reference to the admissibility or otherwise of the application. 5. A hearing was held on 3-2-2003 when Shri N. Venkatraman, Advocate appeared for the applicant along with S/Shri Muthu Venkatraman, Advocate and S. Ramachandran. None represented the Respondent Commissioner. 6. Shri Venkatraman, Advocate narrated the facts of the case and submitted that all the conditions u/s 127B of the Customs Act are satisfied and, accordingly, prayed for admission of the application. He added that there could be an objection in entertaining this application in view of the Circular No. 53/2002, dated 20-8-2002 issued by the CBEC from file 607/16/2001 DBK. containing the opinion of Law Ministry, stating, inter alia, that there is no fresh disclosure as the applicant has executed a bond at the time of clearance of the goods wherein the duty liability is already indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication can occur only after the clearance of the goods and hence it cannot be said that there was a disclosure of the duty liability in the bond even before clearance of the goods. He further drew attention to sub para (ix) under para (8) of the impugned SCN wherein the grounds for invoking the penal provisions u/s 114A/ 112(a) of the customs Act have been discussed, holding the applicant liable for penalty under these provisions. He then referred to the provisions under Sec. 114A and pointed out that the Revenue cannot propose penalty holding that the applicant had suppressed certain facts resulting in short levy/non-levy/short payment/non-payment and yet at the same time, object to the admission of the application on the ground that the applicant had already disclosed the duty liability. According to him, such a stand is self-contradictory. He also stated that all the Benches of the Settlement Commission have been admitting and settling applications of this nature and by applying the theory of precedence, this application also merited admission. He concluded by submitting that all the conditions u/s 127B(1) of the Customs Act are satisfied and accordingly requested for admissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, the Bench is not bound by the Board s Circular. But still, the legal validity of the various issues contained in circular No. 53 referred supra is discussed in the following paragraphs. 12. It is on record that all the Benches of Settlement Commission, including this Bench, have been admitting and settling applications relating to disputes emanating out of imports made under export promotion schemes. In fact, in some of the earlier applications of this nature before this Bench, even the Revenue had not raised any objection to admission. None of the orders of admission (in such cases) has yet been set aside by the Courts on this account. In one such case of Ganapathy Smelters settled by this Bench, the Respondent, namely, the Commissioner of Customs, Chennai has filed a writ petition in the Hon ble High Court of Madras. The said Writ Petition is yet to be disposed of by the Hon ble High Court. Revenue s prayer for stay of the order passed by this Commission has not found, favour with the High Court. The Hon ble High Court has passed the following order in WMP 29188 of 2002 in WP 21108 of 2002 in the said case. Order - This petition coming on for orders upon perusing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-4-97. The undertaking given in the bond/bank guarantee is only to safeguard duty in the event of any failure to comply with conditions of the notification. Failure to comply with the post importation conditions of a notification, by nature, can only be subsequent to availment of assessment under the said Notification and clearance of the goods assessed. At the time of declaration in the B/E, while seeking assessment clearance under the concerned Notification, the importer only undertakes to fulfill, and not to fail, the said conditions. The extent of subsequent failure could be 100% or lesser. In this case also, the applicant has claimed at the time of filing B/E before the Revenue their intent to export goods worth US$ 19,68,036, whereas subsequently Revenue found the FOB values in the 5 shipping bills under which the exports were claimed to have been made to be only Rs. 17,24,397/-. The Revenue have stated in their comments forwarded in their letter F. No. C1/Misc 10/2002 Legal (Sea) dated 6-9-02 that the said exports worked out to only 2.6% of the total export obligation cast on the applicant. However, the basic fact is the disclosure in the B/E, which is the original assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ica Ltd., 2001 (133) E.L.T. 495 (SETT. COMM.) and the ratio laid down therein squarely applies to this case also. The opinion of the Law Ministry circulated by Board in circular No. 53, dt. 20-08-02 has been specifically discussed as under in the order passed by the Principal bench in M/s. J.K. Drugs Pharmaceuticals, New Delhi to which the learned Advocate referred. 15. The Basic contention of Revenue is that cases of non-fulfillment of export obligations under DEEC are out of the purview of Sec. 127B of the Act. The Commission finds that each and every argument advanced by Revenue against the admission of the case under reference has been dealt in the case of M/s. Bell Granito Ceramica Limited - 2001 (133) E.L.T. 499 (Settlement Commission) wherein the Commission had admitted a case of non-fulfillment of export obligation. The only difference here is that while in the above case Revenue had raised various objections at the time of hearing as well as through Commissioner s submissions, in the present case Revenue has inter alia produced a circular dated 20-8-2002 issued by the Board based on the advice of Ministry of Law. It is a well-settled law that a circular issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roach, which would carry out the necessary amendment of the statute, for which the Rules and the Form lend a hand to carry out the objectives of the Act. The language employed therein even though executive voiced is more often than not, demonstrative of the legislative purpose. So viewed, the intendment of the statute is furthered if an ex-employee too is held entitled to seek relief under Sec. 20(2) of the Act . 15.4 From the provisions in the format it is apparent that the additional duty liability is with reference to duty assessed and paid in the Bill of Entry/ Shipping bill and not in other declaration, guarantee, bond, etc. which might be a requirement to ensure intended use/compliance of law. It is apparent that, the liability has to be determined with reference to duty levied and collected under the Bill of Entry and conditions attached at the point of clearance is a case of concession assessment are of no consequence. 8. From the detailed discussions analyzing in minute details the relevant statutory provisions, it is clear that the disclosure made in the settlement application is a fresh disclosure, not disclosed before the proper officer. The proceedings are pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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