2003 (7) TMI 88 - HC - Customs

Court upholds order denying duty exemption, finds fraudulent clearance for Coast Guard, duty recoverable with interest.

HI-TECH ENGINEERS Versus UNION OF INDIA

HI-TECH ENGINEERS Versus UNION OF INDIA - 2003 (161) E.L.T. 96 (Bom.) Issues Involved:1. Whether the Petitioners who fraudulently obtained duty-free clearance of imported Dracone Barges under Section 90 of the Customs Act, 1962, can file an application before the Settlement Commission and claim that no duty is payable on the said barges in view of Exemption Notification No. 291/84-Cus.2. Whether the Settlement Commission is justified in holding that customs duty is recoverable with interest at the rate of 10% per annum from the date of removal of the barges from the warehouse till payment, in the absence of any statutory power.Detailed Analysis:Issue 1: Duty-Free Clearance and Exemption Notification No. 291/84-Cus.The petitioners fraudulently cleared the barges from the warehouse under Section 90 of the Customs Act by falsely declaring that the barges were to be supplied to the Indian Navy. Upon investigation, it was revealed that the barges were not supplied to the Indian Navy but to the Indian Coast Guard. The petitioners contended that they were under the bona fide belief that the Indian Coast Guard is a part of the Indian Navy. However, the Coast Guard Headquarters clarified that the Indian Coast Guard is not a part of the Indian Navy, but an armed force under the Ministry of Defence.The petitioners then approached the Settlement Commission, admitting their mistake and seeking the benefit of Exemption Notification No. 291/84-Cus., which exempts customs duty on goods imported by a person authorized by the Government. The petitioners argued that they fell under the category of a 'person authorized by the Government' as they had imported the barges on the authority of the Indian Coast Guard. However, the court found that there was no evidence of any authorization given by the Indian Coast Guard to the petitioners to import the barges. The terms of the contract between the petitioners and the Coast Guard did not include any authorization to import, and the barges were to be supplied locally.The court held that the petitioners were not entitled to the benefit of Exemption Notification No. 291/84-Cus. because they were not authorized by the Coast Guard to import the barges. The fraudulent declaration and the lack of any linkage between the imported barges and those supplied to the Coast Guard further supported this conclusion.Issue 2: Recovery of Customs Duty with InterestThe Settlement Commission directed the petitioners to pay the customs duty with interest at the rate of 10% per annum from the date of removal of the barges from the warehouse till payment. The petitioners contended that there was no statutory provision for levying interest on the duty amount under the Customs Act at the relevant time.The court held that Section 72 of the Customs Act provides for the recovery of duty with interest on goods improperly removed from the warehouse. Since the barges were cleared based on a false declaration, the clearance was deemed improper. Consequently, the duty was found payable on the improperly cleared goods, and interest was recoverable under Section 72 read with Section 61 of the Customs Act.The court cited the Apex Court's decision in Pratibha Processors v. Union of India, which held that interest is linked to the duty payable. Since the duty was payable at the time of removal, the interest was also payable. The Settlement Commission's order to levy interest was thus justified.Conclusion:The court upheld the order passed by the Settlement Commission, concluding that the petitioners were not entitled to the benefit of Exemption Notification No. 291/84-Cus. and that the customs duty was recoverable with interest. The writ petition was dismissed with costs.