9911796707
TMI Blog2003 (6) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale price to be Rs. 4.54 crores. The earnest money of Rs. 90.93 lakhs paid by the intending purchaser to the vendor and the agreement provided for adjustment of this amount towards sale price. It also provides that in the event of the purchaser committing the breach of the terms and conditions of the agreement, the vendor (the appellant) shall, without prejudice to its other rights in law be entitled to forfeit an amount of Rs. 45,46,500/- out of the earnest money and forthwith refund the balance amount to the purchaser. While the proceedings preliminary to the completion of the sale such as obtaining clearance from the Income Tax authorities, were under way, the appellant was served a summons on 17-11-1997 under Section 108 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val Kishore Bangad. The Assistant Commissioner's order held that in the event of failure to pay this amount, the provisions of Section 144 of the Act will be resorted to. 3.On 10-12-1998, the Assistant Commissioner passed an order, addressed to Tropical Exotics, Naval Kishore Bangad, Sangita Bangad, Vinita Lakotia and Utopian Financial Solutions Pvt. Ltd. By this order, he "prohibited and restrained, until the further order of the undersigned, from transferring or charging the under mentioned property in any way and that all persons be, and that they are hereby prohibited from taking any benefit under such transfer or charge". Among the properties specified by him is Free Press House, the owner of which was the appellant. The order also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny out of such money. Vinita Lakhotia had agreed to return the money that she received from Bangad to the Customs. In her letter of 25-2-1998 to the Commissioner of Customs, she had requested that the property (under consideration by us) may be considered as surrendered by her to the Customs Department on account of Naval Kishore Bangard's firm by adjusting the demand for the duty drawback erroneously received by her firm. It says "I have no objection with the Department restraining the property for transfer of bank accounts of Utopian Financial Solution Pvt. Ltd., confirmed receipt by it of money to the extent of Rs. 1.23 crores from three fraudulent firms including Tropical Exotica. It is out of this amount that the earnest money as paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n framed to carry out the provisions of this section. Rule 3 provides for issue of a certificate by the Assistant Commissioner of Customs specifying the amount due from the defaulters and for it to be sent to the Commissioner having jurisdiction over the place in which the defaulter owns any movable or immovable property or resides or carries on his business or has his bank accounts. Rule 4 provides for the Commissioner on receipt of such certificate to authorize any subordinate officer to cause notice to be served upon the defaulter requiring him to pay the amount specified in the certificate within seven days from the date of the service of the notice and intimate that in default, such subordinate officer is authorised to take steps to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the Counsel that it has not been by any means established beyond doubt as required by law that this is in fact so. The mere fact that Vinita Lakhotia received some amount from Bangad, he says, cannot lead to the conclusion that the origin of this money can be traced back to the fraudulently obtained drawback. We have not examined the correctness of the claim because in our view proceed to the next claim that even assuming that this was act of money is paid as drawback the attachment is still not covered by the rules. 9.The Commissioner (Appeals) records that the department itself came to know of the fraud only on 16-10-1997. The amount of drawback therefore must have been paid to him prior to this date. The agreement for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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