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TMI Blog2015 (11) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... nd landing charges was assessed. It is a different matter that for the sake of convenience and in order to comply with the interim directions of the High Court, insofar as the additional duty on basic and auxiliary custom duty and landing charges is concerned, the same was not actually recovered but was secured by means of bank guarantee. In any case, there were clear endorsements in respect of demand of this additional duty made on the Bills of Entries by the Assessing Officer. This, according to us, would clearly constitute a “demand” which was issued. - case of the appellant was covered by Section 87(m)(ii)(b) and did not get excluded by virtue of Section 95(ii)(b) and, therefore, the appellant was entitled to the benefit of the KVSS. - Decided in favour of assessee. - Civil Appeal No(s). 2820/2007 - - - Dated:- 8-10-2015 - Mr. A.K. Sikri And Mr. Rohinton Fali Nariman, JJ For the Petitioner : Mr. Shyam Divan, Sr. Adv., Mr. U.A. Rana, Adv., Ms. Mrinal Elkar Mazumdar, Adv., Mr. V. Mohan, Adv. And M/s Gagrat Co.,Adv. For the Respondent : Mr. A. K. Panda, Sr. Adv., Mr. Arijit Prasad, Adv., Mr. R. S. Jena, Adv. And Mr. B. Krishna Prasad, Adv. ORDER A.K.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded for a period of ten weeks. On 28.07.1994, respondent no. 3 issued demand notice in respect of Bill of Entry No. 1175/164 dated 28.05.1986 calling upon the appellant herein to pay a sum of ₹ 5,08,300/- along with interest @ of 12% i.e. ₹ 5,03,008/-. A copy of this notice was sent to the Bank of Baroda which has furnished bank guarantee for encashing the bank guarantee for the aforesaid amount. The period of ten weeks which was granted by the High Court has also expired in August, 1994 and because of this reason the respondents wrote another communication dated 12.08.1994 to the bank for encashment of the said bank guarantee to recover the outstanding differential duty. In the meantime, order of Bombay High Court was challenged by the appellant by filing special leave petition in this Court. In the said special leave petition interim order dated 14.11.1994 was passed by this Court permitting the respondent to encash the bank guarantees to the extent of half the duty due, i.e. up to ₹ 3.25 crores. It was also directed that the remaining bank guarantees would be kept alive till the disposal of the said matter in this Court. In this special leave petition leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application of the appellant once again giving the reason that there were no tax arrears as contemplated by Section 87(m)(ii)(b) of the KVSS and also that the case of the appellant was covered by Section 95(ii)(b) of the said Scheme and, therefore, the appellant was not entitled to the benefit under the Scheme. Against this order, the appellant approached the High Court again and filed writ petition under Article 226 of the Constitution. This writ petition has been dismissed by the High Court vide impugned judgment dated 31st March, 2006. From the aforesaid it is clear that the question that is to be determined by this Court is as to whether the case of the appellant is covered by KVSS and more particularly by Section 87(m)(ii)(b) of the KVSS or it is excluded by the provisions of Section 95(ii)(b) of the said Scheme. The aforesaid clauses of the two Sections are re-produced as under: Section 87: xxxxxx xxxxxx (m) tax arrear means,- (i) in relation to direct tax enactment, the amount of tax, penalty or interest determined on or before the 31st day of March, 1998 under that enactment in respect of an assessment year as modified in consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have already pointed out above that when the writ petition No. 1174 of 1986 was pending in the Bombay High Court and interim order dated 14.11.1994 was passed, on the basis of such interim arrangements not only for payment of differential duty as on that date was made, the appellant also cleared subsequently imported goods in future as well on the said basis. The Customs Authority, acting on the order, not only asserted the additional duty @ 15% on aggregate value of CIF price but even this additional duty on basic and auxiliary custom duty and landing charges was assessed. It is a different matter that for the sake of convenience and in order to comply with the interim directions of the High Court, insofar as the additional duty on basic and auxiliary custom duty and landing charges is concerned, the same was not actually recovered but was secured by means of bank guarantee. In any case, there were clear endorsements in respect of demand of this additional duty made on the Bills of Entries by the Assessing Officer. This, according to us, would clearly constitute a demand which was issued. The issue is no longer res integra and has already been decided in Swastika Enterpris ..... X X X X Extracts X X X X X X X X Extracts X X X X
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