TaxTMI 
TaxTMI 
2006 (5) TMI 315
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....hat on the basis of an intelligence that M/s. Mars Overseas, was exporting cheap material i.e. goods under the Duty Entitlement Passbook Scheme (DEPB) by misdeclaring the same as bulk drugs, the officers of DRI, Mumbai Zonal unit, identified the Shipping Bill of the said exporter from the EDI system, Jawaharlal Nehru Custom House (JNCH), Nhava Sheva. It was found to be a Loose Container Load cargo of 'Amoxycillin Trihydrate' covered under the Shipping Bill No. 3295430 dated 19-2-2005 which was immediately put on hold. The description of the goods mentioned in the said Shipping Bill was 160 packages of 'Amoxycillin Trihydrate' (compacted) BP, stuffed in container No. GATU-8514129. The invoice number mentioned in the Shipping Bill was MO/028/04-05 dated 1-2-2005 and AR4 No. 555 dated 13-11-2004. The total FOB value of the goods was declared as Rs. 43,41,935/- and total quantity as 4000 kgs. The invoice indicated the manufacturer of the goods as M/s. Aurobindo Pharma Ltd. The said container was examined on 26-2-2005 and it was found to be stuffed with goods of different packing, covered under various Shipping Bills. The container was de-stuffed completely and the goods covered under t....
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....Napthol was imported and cleared without payment of Basic Customs Duty of Rs. 3.53 Lakhs. 5. After the investigations a Show Cause Notice vide F.No. DRI/MZU/NS/INV-07/04-05 dated 24-8-2005 was issued to the applicants under the Act read with Foreign Trade (Development and Regulation) Act, 1992 and Foreign Trade (Regulations) Rules, 1993 proposing to:- (i) Confiscate the impugned goods seized on 2-3-2005 having total declared FOB value of Rs. 43,41,935/- (ii) Confiscate the goods exported vide 16 Shipping Bills having total declared FOB value of Rs. 6,68,64,980/-. However the said goods are not available for confiscation. (iii) Reject the total DEPB benefit of Rs. 4,77,612/- sought to be claimed against Shipping Bill No. 3295430 dated 19-2-2005 against FOB value of Rs. 43,41,935/- (iv) Reject the total Customs duty foregone of Rs. 97,69,199/- sought to be claimed as per the 11 DFRC licences issued against exports made under the impugned 16 Shipping Bills. (v) Confiscate the consignment of 26 MT of Beta Napthol imported under Bill of Entry No. 797836 dated 4-2-2005. However as t....
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....e vide Interim Order. No. 23/Cus/2006 dated 6-3-2006 ordered both sides to submit their replies on the following points: - (a) Whether a person who has been absconding and has never appeared before the Revenue during the entire proceedings at the investigation stage and leading to the issue of Show Cause Notice, can file an application for settlement especially when the address given by him are found to be bogus? (b) If the answer to Question No. (a) is in the affirmative how can the Revenue be satisfied whether the applications have been signed by the persons concerned as their signatures are not verifiable. (c) Whether non-appearance of the applicants before the Revenue can also be treated as non-cooperation with the Bench, debarring filing of such applications? (d) Whether persons to whom Show Cause Notices have been sent but returned un-delivered can come before the Settlement Commission? (e) Whether the ld. Advocate can on behalf of his client (co-applicant) modify the original application to admit duty liability earlier admitted by the applicant or ....
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....to attend in person as per clause 2(iv). (ii) Moreover, the co-operation extended by an applicant, is in relation to its disclosure of complete duty liability and payment thereof. (iii) Debarring of filing of application of any person, on ground of non-appearance before the Revenue, is not prescribed under statute. Such a view if taken would amount to adding words in statute, which is not permissible. (iv) The Hon'ble Commission has settled cases of the applicants in the matter of M/s. Perfect Trading Co., against whom detention orders under the COFEPOSA Act, 1974 were issued, and who were allegedly absconding for evading the service of the detention order. (d) The proviso to sub-section (1) of Section 127B of the Act, supposes only the issuance of Show Cause Notice to the applicant, in relation to Bill of Entry. Whether the same was delivered or not, is not material therefore? What is not provided in the statute, cannot be read into it, to circumscribe a beneficial provision? (e) An advocate represents ....
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....e applicant for which he would need some time. The Bench directed the Revenue to submit their written submissions by 10-4-2006, which the ld. Consultant agreed. The ld. Consultant furnished the written submissions vide letter dated 8-4-2006. The point-wise reply of the ld. Consultant for the Revenue is as below : (a) There is no express bar in Section 127B(1) of the Customs Act, 1962 that a person who has been absconding and has never appeared before the Revenue cannot file an application for settlement of his case. However, when the person's address is found to be bogus, it raises a genuine doubt as to his very existence and identity. In such a situation, it will be hazardous even to guess that the person making the application is genuine. (b) When the concerned person has never appeared before the Revenue and is not willing to disclose his address even in the application, the Revenue has no manner of tracing him out to verify his signatures. (c) Strictly speaking, non-appearance of the applicant before the Revenue will amount to non-cooperation with the Commission. It is needless to mention that the ....
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....the issue of entertainability of the application where the applicant is absconding from the time the case was detected by the investigating agency. In this regard we would refer to the Admission Order No. 20/2005-Cus. dated 26-10-2005 where similar pleas were raised in regard to the applications filed by the persons who were absconding and evading COFEPOSA detention order issued by the appropriate authority against them. The findings of the Bench on this issue are given in Para 10 of the said order. The relevant portion of the same is extracted below: "We have gone through the records and the contentions raised by the applicant and the Revenue. We observe that the objections raised by the ld. Counsel for the Revenue are mostly procedural, though some of these are other than procedural. So far as the procedural objections are concerned, these are not irremediable as claimed by the Revenue and are not very relevant for considering admissibility of the applications. Similarly, the objections, other than procedural objections are also not very relevant for considering admissibility of the applications. To wit, the Apex Court's judgement in Alka Subhash case (supra) held that jurisdi....
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....se" as given in Section 127A(b) of the Act. 16. Now we come to the question whether the applicant fulfils the conditions laid down under Section 127B of the Act for admission of the application. The fundamental condition requires the applicant to make a full and true disclosure of his duty liability and the manner in which such duty liability has been incurred. Such a disclosure would include Modus Operandi adopted and true facts of the case. In this regard we observe that Shri Sadik Sadruddin Chunara in his application has inter alia stated as below : "The applicant submits that in view of the allegation levelled in the Show Cause Notice that the Applicant was the mastermind behind the fraudulent exports and that the Applicant opened the firm M/s. Mars Overseas, the Applicant may please be allowed to pay the customs duty of Rs. 3,52,885/-, against Bill of Entry No. 797836 dated 4-2-2005 filed by M/s. Signet Overseas Ltd. under the DFRC Scheme." Further the ld. Advocate in his written submissions dated 10-1-2006 have inter alia stated as below:- "Sadik Sadruddin Chunara is alleged to be the "mastermind" behind the entire misuse of the schemes. For the purposes o....
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....aid premises was owned by him; that he made an agreement with Shri Pravin Shah for renting out the above premises, that to make the agreement to appear real, he gave Rs. 30,000/- in cash to Shri Pravin Shah and asked Shri Pravin Shah to issue him a A/c payee cheque of Rs. 27,500/- being one years rent for above premises. Shri Sadik S. Chunara further stated that one of his friend Shri Anil Kumar who stays in Dubai had introduced Shri Pravin Shah to him and that they (Sadik, Anil and Pravin) had planned to open the firm by name M/s. Mars Overseas, that it was planned that he and Shri Pravin Shah will export cheap and low valued goods by overvaluing them so as to avail higher export benefits, that the export benefit earned by carrying out such fraudulent exports would be shared in the ratio of 25:15:60 between himself, Shri Pravin Shah and Shri Anil Kumar respectively." 18. The above statement has not been controverted by Shri Sadik Sadruddin Chunara. On the contrary in his application for settlement he has stated that the allegations levelled in the Show Cause Notice are accepted and that he may be allowed to pay the Customs duty of Rs. 3,52,885/- as demanded therein. This d....