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TMI Blog2007 (9) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandra Bansal, r/o 1669, Urban Sector-IT, Hissar, Haryana was instrumental in fabrication of documents so as to avail Duty Exemption Entitlement Certificate (DEEC) for import of PVC resin without payment of Customs duty with the help and indulgence of Shri Dharamvir Bansal and that the goods imported under advance licences which were got issued from the office of Jt. DGFT, Ludhiana with the condition of 100% bank guarantee, were got cleared from the Customs without submitting arty bank guarantee on the basis of forged letters, the officers DRI, on 1-7-2005, searched the factory and office premises of M/s. Dollar Poly Pipes (India) Ltd. located in Distt. Patiala and Panchkula, respectively and residential premises of the persons connected with the said imports. During the search, a number of documents and a rubber stamp in Urdu with markings in English as 'Sharjah, UAE Trade Plus Trading Establishment' considered relevant to the investigation were recovered and resumed. During investigations, the statements of a number of persons connected with the said imports including those of Shri Dharamvir Bansal, the applicant (Shri Vinod Kumar Garg) and Shri V.K. Bansal were recorded. Shri D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26,60,340 75,84,90 ICD TKD 424162/5-5-05 PVC Resin 80 35,47,120 10,11,321 ICD TKD 424199-5-5-05 PVC Resin 60 26,60,340 7,58,490 ICD TKD 5. 22100000970 305789/20-10-02 PVC Resin 40 13,77,236 7,82,711 Mumbai Sea Port Total 840 3,52,79,993 1,04,48,740 M/s. Shivalik Plastichem ( India ) Limited. S. No. Advance Lic. No./ Date Bill of entry no./ date Items Qty. (MT) Assessable Value Duty forgone (Rs.) Port of Import 6. 2210004049/22-12-04 420362/16-4-05 PVC Resin 112 4308340 1228308 ICD TKD 420352/16-4-05 PVC Resin 112 4308340 1228308 ICD TKD 420483/19-4-05 PVC Resin 56 2154170 614176 ICD TKD Total 280 1,15,40,196 30,70,79 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 15 lacs The Bank of Rajasthan M/s. Dollar Polypipe India (P) Ltd. 2. 401156/ 18-7-2005 50 lacs The Bank of Rajasthan M/s. Dollar Polypipe India (P) Ltd. 3. 485185/23-12-2005 20 lacs SBI Overseas M/s. Dollar Polypipe India (P) Ltd. 4. 485184/23-12-2005 25 lacs SBI Overseas M/s. Shivalik Plastichem India (P) Ltd. 5. 021308/6-3-2005 5 lacs The Bank of Rajasthan M/s. Shivalik Plastichem India (P) Ltd. 6. Cash 1.20 lacs M/s. Shivalik Plastichem India (F) Ltd. 3.1 On completion of the investigation SCN, (supra) was issued to M/s. Dollar Poly Pipes (India) Ltd., its Chairman-cum-MDs namely, Shri Dharamvir Bansal and Shri Vinod Kurnar Barisal and to the applicant Shri Vinod Kumar Garg, MD, M/s. Veekay Polycoats Ltd., proposing to confiscate 800 MT PVC Resin imported under 04 advance licences (Sl. Nos. 1 to 4 of Table-A above) in the name of M/s. Dollar Poly Pipes (India) Ltd. which was subsequently diverted, demanding jointly and severally f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the SCN deal with 800 MT and 280 MT of PVC Resin respectively involving total customs duty of Rs. 1,27,36,821/-. The applicant had during the investigations deposited Rs 1,16,20,000/- as could be seen from Para 65 of the SCN and the balance amount of Rs 11,16,821/- was deposited on 29-6-2007 as is evident from applicant's letter dated 29-6-2007. The applicant has, therefore, deposited the entire accepted amount of Rs. 1,27,36,821/--. He also stated that the SCN clearly declares the applicant as chargeable to duty by asking him to pay the said amount of duty. He alluded to Paras 7 and 9 of the Settlement Commission's Special Bench Order in the case of Yousuff Kasim Sait [2003 (161 ) E.L.T. 1069 (Sett. Comm.)] and stated that it has already been held by the Commission that any other person who is not an importer and who may have a "case" against him as defined in Clause (b) of Section 127A of the Act can also file a settlement application. He further stated that Settlement Commission as in the case of A. Mahesh Raj [2001 (131) E.L.T. 707 (Sett. Comm.)] had held in Para 6 of the said order that as per Section 127 B(1) of the Customs Act, 1962, it is not the importer or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case should not be of the excluded variety as provided under the 4 provisos of Section 127B of the Customs Act. Revenue has stated that according to the applicant, he is covered under the terms 'any other person' and he has cited the case laws. Though Revenue concedes that Shri Garg (the applicant) has made a full and true disclosure of duty liability but Revenue contends that he has not disclosed the manner in which said liability has been incurred. Revenue also concedes that it is a 'case' as per definition in Section 127A of the Act but argues that the main noticees have not approached the Commission and without the main noticees approaching the Commission, Shri Garg (the applicant), is not entitled to approach the Commission because he is not 'any other person' who is chargeable to duty or interest as interpreted by Settlement Commission in the case cited by the applicant. According to the Revenue, in the case of Yousuff Kasim Sait [2003 (161) E.L.T. 1069 (Sett. Comm.)], the Settlement Commission had observed that persons referred to in Section 45(3), 82(1), 125(2), 147(3), 128 and 129DD of the Customs Act, 1962 would be 'any other person chargeable to duty' under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed sections of the Customs Act, 1962 alone would fall within the meaning of the term 'any other person' used in Section 127B of the Act. These sections have been drawn upon in the nature of examples. The final majority decision that has been made in the afore-mentioned Special Bench's order in case of Yousuff Kasim Sait is extracted below: "18. In view of the above elaborate discussions, the Special Bench would like to answer the issues as follows: (i) Which categories of persons can come for settlement under the term 'any other person' used in Section 12Th of the Customs Act. 1962? Answer : Any person, other than an importer, to whom a SCN has been issued charging him with duty and in which case a "B E' has been filed though not necessarily by such person provided the case must relate to him and with reference to the B E filed, and must be pending before the proper officer." When viewed in the light of above conclusion of the Special Bench, it is seen that in respect of the application under consideration, Revenue has already conceded that it is a 'case'. Undoubtedly, a SCN has already been issued in this case. The SCN without doubt charges the applicant (Shri V. K. Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the plea of the Revenue that case relating to duty evasion of Rs. 7,82,711/- would still remain unsettled because importers or person relating to the said import of 40 MT of PVC Resin are not before the Commission would not hold good against the eligibility of the applicant for two reasons. Firstly, the applicant as per the SCN is not concerned with the said import of 40 MT of PVC Resin. Secondly, a noticee, charged with payment of duty, is entitled to seek settlement in his own right and his eligibility is not dependent upon choice of any other noticee not to approach the Settlement Commission. 9. In view of the above, the Bench has come to the conclusion that the applicant meets the criteria for admission of his case as laid down in Section 127 B of the Act. Accordingly, the Bench admits the case and allows the application of the applicant to be proceeded with in terms of Section 127C(1) of the Act. 10. With the admission of this case, this Bench acquires the exclusive jurisdiction to exercise the power and perform the functions of any officer of Customs or Central Excise as the case may be, under Customs Act, 1962 in relation to the proceedings in this case in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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