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TMI Blog2009 (4) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... s specified in the notice, the amount specified had remained unpaid on the date of making a declaration under Section 88 as the show cause notice itself set out as to why the deposit should not be adjusted - Respondent is directed to consider the petitioners' declaration dated 28.12.1998 and pass appropriate orders according to law expeditiously. X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee of Rs.80 lakhs and lifted the seizure and freezing of the petitioners' bank accounts. 4. In the meantime, the application for cancellation of bail moved by the respondents against Raju Amarnani was rejected. On 7.12.1995, J.Amarnani and Raju Amarnani were detained under COFEPOSA. On 14.12.1995, Summons were issued to Raju Amarnani and his wife. Replies were given to the summons. According to the petitioners, on account of the detention and service of summons on Raju Amarnani and his wife, the petitioners were coerced into depositing a further amount of Rs.90 lakhs against the alleged customs duty evasion. On 17.1.1996, the order passed under COFEPOSA was revoked. According to the petitioners, thereafter they were coerced into depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrears" under clause 87(m)(ii) of the Kar Vivad Samadhan Scheme. It is submitted that Explanation cannot and does not apply to amounts deposited which are not paid as duty which has not been ascertained. The amount of Rs.1.30 crores was not deposited pursuant to a show cause notice or an adjudication order. Amounts paid during investigation are only a deposit and not payment of duty. It cannot therefore be treated as "duty". Unless there is assessment and demand, the amount deposited cannot be appropriated as it is not duty. The word "duty" does not and cannot refer to the amount of Rs.1.30 crores which the petitioners were coercively compelled to deposit before the issue of show cause notice. It is submitted that the amounts were paid unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est, fine or penalty determined as due or payable under that enactment as on the 31st day of March, 1998 but remaining unpaid as on the date of making a declaration under section 88; (b) the amount of duties (including drawback of duty, credit of duty or any amount representing duty), cesses, interest, fine or penalty which constitutes the subject matter of a demand notice or a show cause notice issued on or before the 31st day of March, 1998 under that enactment but remaining unpaid on the date of making a declaration under Section 88, but does not include any demand relating to erroneous refund and where a show cause notice is issued to the declarant in respect of seizure of goods and demand of duties, the tax arrears shall not include t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voluntarily (details as per annexure D)." Further, the show cause notice says why the penalty should not be imposed. The language therefore is clear. As on the date of the show cause notice, the amount from the deposit had not been adjusted. Therefore, as on the date of the show cause notice, neither was the duty ascertained nor was the amount adjusted. In the absence of the amount of deposit having been adjusted the question whether the deposit was voluntary or not is immaterial. Under Section 87(m)(ii) (5) of the Scheme, the application could have been rejected. Though the amount of duty was specified in the notice, the amount specified had remained unpaid on the date of making a declaration under Section 88 as the show cause notice its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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