TaxTMI 
TaxTMI 
2002 (1) TMI 455
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....he applicant was granted EPCG Licence No. 2133343, dated 27-7-1994. The total export obligation imposed on the applicant was Rs. 26,22,88,560/-. The applicant could effect exports worth Rs. 4,50,62,330/- only due to the extremely difficult conditions faced by the polyester industry on account of the glut in the international market. 3. A total duty amount of Rs. 1,66,71,217/- + interest was demanded by the Assistant Commissioner of Customs, EPCG Group, New Custom House, Mumbai vide Duty Demand Notice No. S/40-SPL-71/95 VA, dated 31-7-1998 and No. S/40-SPL-388/94 VA, dated 7-8-1998 against Bills of Entry No. 4157, dated 10-1-1995 and No. 11547, dated 30-4-1994 respectively. 4. The applicant filed an application on 30-3-2000 under Section 127B of the Customs Act, 1962 before the Additional Bench of Settlement Commission, Mumbai for the settlement of his case. In his application, he disclosed and admitted duty liability of Rs. 1,23,81,895/-. 5. The Hearing for admission of the case was held on 10-5-2000. During the hearing, the Learned Advocate of the applicant submitted that there is an error in the calculation of actual amount of duty payable. Considering the....
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....ion. He stated that the Applicant had taken a loan of Rs. 1.55 Crores from the Corporation Bank which has been reduced to Rs. 1.2 Crores. In respect of loan taken from Industrial Development Bank of India, the Applicant had paid only interest and the principal amount is yet to be paid. The Applicant has sold all lands and plants to raise the loan amount. He prayed to the Commission that the Applicant be allowed to pay duty liability of Rs. 1,23,81,895/- in four equal quarterly instalments with first instalment of Rs. 20 Lakhs within one month of date of receipt of the order and for waiver of interest on the duty liability. The Revenue stated that the Applicant was given two personal hearings but he did not appear and submit export obligation discharge certificate. Though there is no provision for charging of interest on duty in the notification but according to Legal Agreement Undertaking executed by the Applicant and incorporated in the licence issued to them, the same can be charged. The Commission asked the learned Departmental Representative whether the case is fit to be admitted or not. The learned Departmental Representative replied that the application should not be admitted....
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....orporation Bank stating that the Applicant has imported Capital Goods, that the Applicant was directed to discharge export obligation but the Applicant has failed to fulfil the export obligation, that the bank guarantee be forfeited and the demand draft for the entire amount be sent to the Assistant Commissioner of Customs. 13. The Applicant has availed the benefit of duty concession in terms of Notification No. 160/92-Cus. by observing conditions (i) to (ii) contained therein. Referring to sub-section (9) of Section 127C he stated that the settlement could be totally effective if the DGFT and Bank are restrained from enforcing the bank guarantees executed by Applicant till the application is finally decided by Commission. The learned Consultant submitted last 5 years balance sheets. He drew attention of the Commission to headings "Working Results" and "Land and Building" in Directors' Report to the Shareholders of 7th Annual Report - 1999-2000. He stated that the Applicant has sold his land and building and in such a situation it is not possible for the Applicant to pay entire admitted liability. He undertook to pay the balance amount of admitted liability as soon as the b....
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....orporation Bank paid Rs. 83.51 lakhs as Customs duty on behalf of the applicant against cancellation of the applicant's two bank guarantees on 30-10-2000. 19. The next hearing was held on 15-2-2001. The learned Advocate for the Applicant submitted that the admitted duty liability is Rs. 1,16,49,093/-. Earlier he had shown the admitted duty liability as 1,23,81,895/-. The learned Advocate also submitted that the deemed export and export made under DEEC were also to be taken into consideration for the satisfaction of export commitment. In this connection the learned Advocate submitted an extract of Export and Import Policy (1st April 1997-31st March, 2001). This is for buttressing the point that export through 3rd party and export made under DEEC scheme are also taken into account. The Representative of Revenue submitted that the Applicant has to provide legible certified copy of Shipping Bills since the Shipping Bills given by him were not legible. The Applicant was informed during the hearing that 79 Shipping Bills, 12AR3s/invoices are involved and legible certified copy should be given to the Revenue on 19th February 2001. The Revenue was directed to scrutinise the documen....
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.... is no dispute that the refunds were eligible to be adjusted against sales tax payable for respective years. The only controversy is whether the appellant, not having actually secured the "prior permission" would be entitled to adjustment having regard to the words of the notification of 11th August 1975, that "until permission of renewal is granted by the Deputy Commissioner of Commercial Taxes, the new industry should not be allowed to adjust the refunds". The contention virtually means this "No doubt you were eligible and entitled to make the adjustments. There was also no impediment in law to grant you such permission. But see language of Clause 5. Since we did not give you the permission you cannot be permitted to adjust." Is this the effect of law?" 22. He also submitted a copy of Export Promotion Capital Goods Scheme from the Handbook of Procedure under which it is mentioned that whenever the applicant has availed the facility of discharging export obligation through third party, the exporter shall mention the name of licence holder, the EPCG Licence number. The ld. Advocate contended that his is a direct export. With reference to monitoring of export performance wit....
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....mance and Export Shortfall in terms of Indian Rupees. This mode of calculation was also accepted by the Customs and no discrepancy was pointed out by them. When the computation of Export Performance and Export Shortfall was to be determined by DGFT, New Delhi, they told him that the computation has to be done in US$ and not in Indian Rupees. The applicant submitted that he agrees with the correct contention of DGFT after going through his commitment in detail. Ultimately, he agrees with the DGFT's computation of total duty and agrees to pay Rs. 1,21,90,562/-. He has already paid Rs. 1,16,49,093/-. The balance duty payable by him is Rs. 5,41,469/-. 25. The Commission has gone through the case records and submission made by the applicant and the Revenue. 26. It is seen from the case records that the applicants have admitted a duty liability of Rs. 1,23,81,895/-. However, the applicant filed a miscellaneous application and revised the admitted duty liability to Rs. 1,16,49,093/-. On the basis of the said revised application, the applicant has made the following payment : Total admitted duty liability Rs. 1,16,49,093/- Paid as per Commission's Order dt. 8-6-200....
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....ays of this letter'. 29. From the aforesaid narration, it is seen that the disclosures made by the applicant are not consistent. In spite of clear instructions on the subject, the applicant has sought benefit in relation to deemed exports, third party exports etc. and has calculated his liability in terms of Indian Rupees instead of US $. 30. It is seen that the Customs authorities have demanded a duty of Rs. 1,66,71,217/- vide Show Cause Notice No. S/40-SPL-388/94 VA, dt. 7-8-98 and Show Cause Notice No. S/40-SPL-71/95 VA, dt. 31-7-98 against two Bill of Entries. However, the Revenue vide their letter F. No. S/40-SPL-71/95/EPCG// S/26-104/95/EPCG, dt. 26-2-2001 has inter alia enclosed a copy of the calculation. According to the said calculation of the Revenue the liabilities are as follows : (A) Differential duty payable : Rs. 1,49,39,415/- (B) Export Commitment : Rs. 26,22,88,560/- (C) Export performance : Rs. 4,57,50,561/- (D) Export Shortfall : Rs. 21,65,37,999/- (E) Duty Payable : Duty concession x Export shortfall Export commitment = Rs. 1,49,39,415 x Rs. 21,65,37,999 &n....