TaxTMI 
TaxTMI 
2001 (5) TMI 920
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Importer through M/s. Orient Transport Co., CHA. 11/93, before New Custom House, Mumbai, Air Cargo Complex, Mumbai and Jawahar Customs House, Nhava Sheva. The said Bills of Entry were assessed to duty at concessional rate of duty i.e @ Rs. 15% + Nil CVD in terms of Notification No. 160/92-Cus., dated 20-4-1992. The normal rate of duty applicable to the different goods was @ 25%, 30%, 40%, 60% & 65% + CVD @ 10% or 15%. The Importer had executed legal undertaking for Rs. 61,32,70,361/- and Bank Guarantee for Rs. 1,75,29,813/- with the office of DGFT in terms of Notification No. 160/92-Cus. The exemption Notification required the importer to fulfil an export obligation equal to four times the value of the said goods during the period of five years, wherein the rate of duty in excess of 15% is sought to be exempted. The CIF value of goods covered by 16 Bills of Entry is Rs. 11,87,99,733/-, thereby export obligation works to Rs. 47,51,98,940/-. As the goods were imported under Licence dated 24-5-1993 hence the five years period expired on 23-5-1998. The Importer M/s. Alexcon Foamcast Ltd. has so far exported goods valued at Rs. 20,44,256/- during the said period under EPCG Scheme. Thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ut to Rs. 3,52,66,040/- and allowing the set off of Rs. 1,51,710/- for the export performance already made, the duty liability works out to Rs. 3,51,14,329/- which the applicant admits. The applicant has executed a bank guarantee before DGFT, New Delhi, which has been encashed towards part realisation of the duty liability by the Department thus leaving a balance of Rs. 1,98,14,516/-. He gave a copy of Auditor's Report for the year 1998-2000, as the balance sheet was not ready, to the Commission and stated that the applicant had launched a new project by using latest technology which could not take off to the expected level, as such the applicant's status is that of a 'sick company'. He stated that the applicant requires instalment facility and on admission an amount of Rs. 10 lakhs would be paid and balance amount in quarterly instalments spread over 3 years. In this context, he gave a copy of Tribunal's decision in the case of G.T.C Industries v. Commissioner of C.Ex., Baroda [2000 (119) E.L.T. 502(Tribunal)], and drew attention of the Commission to para 4 of the said judgment.  The Commission noticed that the Applicant has not made any reference to B.I.F.R. On perusal of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isclosure does not appear to be correct.  Considering the facts and circumstances of the case, the application is allowed to be proceeded with under Sub-Section (1) of Section 127C of the Customs Act. The Applicant shall pay the admitted amount of Rs. 1,99,66,228/- out of the admitted liability of Rs. 3,62,66,040/- as the amount of Rs. 1,52,99,813/- already encashed is allowed to be adjusted against the admitted liability". 6. The applicant failed to make any payment as ordered by the Commission. The applicant vide his letter dated 20-2-2001 has submitted as below : "In spite of acute financial constraints as reflected in the Balance Sheet, we approach your lordship with prayers to kindly grant us permission to pay: (a) Balance of the differential duty amount in quarterly instalments spread over a period of three years commencing six months from the date hereof. (b) Grant us waiver from payment of interest on differential duty. (c) Grant us waiver from payment of penalty/fine. (d) Grant us Immunity from prosecution under the provisions of Customs Act, 1962 as well as any....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that he may be allowed to pay the admitted duty liability in quarterly instalment spread over a period of 3 years commencing six months from the date of his letter dtd. 20-2-2001. The Annual Report for 1998-2000 was also submitted at that time. The Commission drew his attention to sub-section (1) of Section 127-I of Customs Act, 1962.  The Revenue was represented by Dr. A.K. Saxena, Appraising Officer, Customs (E.P) & Shri R.K. Pardeshi, S.I.O, D.R.I, Mumbai. The Representative of the Customs (E.P) submitted that the property of the applicant should be attached as per Section 127D(1) of the Customs Act, 1962. The Representative of the DRI submitted that DRI has seized the plant and machinery of the applicant and the market value of the same is 20 crores. Commission asked him whether the plant and machinery is hypothecated to any banks or financial institutions. He replied that approximately 5 crores can be realised from the party.  The Commission has gone through the records of the case and submissions made by the Applicant and the Revenue. The Commission vide its order dated 5-9-2000 directed the Applicant to pay the amount of Rs. 1,99,66,228/- which was the balance of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsideration shown to us. Encouraged by this, we pray you to please give us some more time (up to end June, 2001) so as to be able to complete necessary formalities and ultimately pay all of our financial liabilities to the Government". 11. From the aforesaid narration it will be seen that order of the admission was passed on 5-9-2000. The Secretariat of the Commission discussed the matter with the representative of the applicant for compliance of the said order. During the course of hearing the applicant has made promises as extracted supra but has not given the list of properties which shall be secured to realise the amount admitted by him. Since the case was admitted by the Commission, Department is not in a position to initiate any action in view of provisions of Sub-Section (2) of Section 127F of the Customs Act, 1962. 12. It is apparent that the applicant has not only failed to comply with the interim order but has also not co-operated with the Commission to furnish adequate security so that the case could be proceeded further. On the contrary the Revenue is prevented to take any further action in as much as it is submitted by the Revenue that the applicant has rea....