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TMI Blog2013 (1) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... December 2011 recording the statement of the Petitioner that the challenge is being restricted only to the notice of demand dated 1 November 2011 (Exhibit C) and that the other reliefs in prayer (a) are not being pressed. The challenge before the Court is accordingly confined to the aforesaid limited extent. 3. A notice to show cause was issued on 29 August 2005 under Section 124 of the Customs Act 1962 to several entities and persons viz (i) Nisum Exports & Finance Private Limited; (ii) Nisum Global Limited; (iii) Mehul Exports; (iv) Nirmal Agarwal and (v) Mayur Vakharia. The gravamen of the notice was a fradulent claim of duty drawback. No notice to show cause was issued to the Petitioner. The Petitioner is a director of Nisum Global Limited. Mehul Exports is stated to be the proprietary concern of the spouse of the Petitioner. An adjudication took place in pursuance of which an order was passed by the Commissioner of Customs (Export Promotion) confirming a demand in the amount of Rs.94.75 lacs against Nisum Exports and Finance Private Limited, in the amount of Rs.53.05 lacs against Nisum Global Limited and Rs.3.40 Crores against Mehul Exports. The adjudicatory order also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by whom the amount is payable. Reliance has also been placed on the provisions of Rules 3, 4, and 5 of the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules 1995 and it has been submitted that in the present case the certificate which was issued under Rule 3 was in the name of Mehul Exports, which is a proprietary concern of the spouse of the Petitioner and in the name of Nisum Exports and Finance Private Limited and Nisum Global Limited of which the director is shown as the spouse of the Petitioner. Hence, it was urged that since no certificate has been issued in the name of the Petitioner under Rule 3 of the Rules, it is not the Petitioner who has been treated as a defaulter and hence, there was no occasion to issue a show cause notice under Rule 4 to the Petitioner requiring her to pay the amount specified in the certificate, nor for that matter could an attachment be levied on the property of the Petitioner. Learned counsel has relied upon the judgments of Division Benches of this Court in Sunil Parmeshwar Mittal v. Deputy Commissioner, (Recovery Cell) 2005 (6) Bom. C.R. 778. and in Vandana Bidyut Chaterjee v. Union of India Writ Petition 165 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Department. 8. In order to controvert the allegations contained in affidavit in reply an additional affidavit has been filed by the Petitioner on 23 July 2012 in which it has been stated that the building in question comprises of a ground floor and 36 upper floors having three flats on each floor except for six floors where there are only two flats. The Petitioner has stated that flat No.1501A is shown in the records of the society in the name of her husband admeasuring 971 sq. ft.; flat No.1501B is in her name and admeasures 950 sq. ft. while 1501C in the name of Rahul Chokhani admeasures 950 sq. ft. The Petitioner has stated that she had purchased the flat by an agreement dated 8 March 2004 for the sum of Rs.29.45 lacs. The Petitioner has stated that she had taken a housing loan of Rs.25 lacs from LIC Housing Finance Limited and has annexed the letter of sanction to the affidavit. In her affidavit in rejoinder the Petitioner has annexed a copy of the registered agreement dated 8 March 2004 in her name under which flat No.1501B was transferred and sold to her. The agreement refers to the area of the aforesaid flat as 950 sq. ft. and contains a floor plan. The Petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorisation by Commissioner of Customs and in accordance with the rules made in this behalf, distrain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus, if any, to such person." 10. The Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules 1995 have inter alia been framed under Section 142 of the Customs Act 1962. The expression "certificate" in Rule 2(iii) is defined to mean the certificate required to be issued by the Assistant Commissioner or Deputy Commissioner under Section 142(1)(c). The expression "defaulter" is defined in Rule 2(vi) to mean "any person from whom government dues are recoverable under the Act". Rules 3, 4 and 5 are as follows : "3. Issue of Certificate. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovable property belonging to such person under sub-clause (ii) of clause (c ) followed by the sale of property are all part of this cohesive scheme. What is significant is that the entire process that is contemplated by Section 142(1) and by the Attachment Rules of 1995 is to be pursued against the defaulter viz. the person from whom government dues are recoverable under the Act. 12. This view finds support in the judgments of the Division Benches of this Court in Sunil Parmeshwar Mittal (supra) and in Vandana Bidyut Chaterjee (supra). 13. Now in the present case the notice to show cause under Section 124 was not issued to the Petitioner. The order of adjudication dated 20 September 2007 was similarly not in respect of the Petitioner. The certificates that were issued under Section 142(1)(c) (ii) on 19 March 2010 were in the names of (i) Mehul Exports of which the proprietor is Nirmal Agarwal, the spouse of the Petitioner; (ii) Nisum Exports and Finance Private Limited of which the director is stated to be Nirmal Agarwal in the certificate; and (iii) Nisum Global Limited of which again the director is stated to be Nirmal Agarwal. The Petitioner at the highest, as the affidavit in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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