TaxTMI 
TaxTMI 
2007 (10) TMI 26
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....B)/Duty Exemption Entitlement Certificate Scheme (DEEC) after misdedaring the value and description of the goods, investigations were carried out by the Directorate of Revenue Intelligence (DRI), Mumbai. 3.During the course of investigation, the shipping bills of SI and UE were taken over in search at the office premises of SI and UE. These shipping bills revealed that SI and UE had done fraudulent exports as 3rd party exports against Advance Licences obtained by M/s. Shree Pushkar Petro Products Ltd., Mumbai (SPPL). Hence, the office of SPPL and residential premises of its Director, Shri Punit Makharia were searched on 2-11-2001. The factory premises of SPPL were also searched on 10-11-2001. 4.Investigations revealed that :- (i)Goods manufactured by SPPL for purpose of export under DEEC Scheme were in fact never exported and were diverted to local market and were sold for profit. (ii)What was exported in reality were low value fertilizers. The fertilizers in fact were prohibited for exports. (iii)The Panvel godown was used as supply base of clandestine export of cheap chemical fertilizer which are prohibited for exports as per Policy provisions and which were in reality smugg....
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....-2007) by the Adjudicating Authority confirming all charges. Therefore, it appears that the subject application will not come under the purview of Section 127B by virtue of Section 127A(b) of the Act. Therefore, the application filed by the applicants are liable for rejection. 9.The Revenue further submitted that in the instant case, 6 Detention Orders have been issued by the Joint Secretary (COFEPOSA), New Delhi, against the main accused and the co-conspirators as mentioned below :- (i) Shri Yusuf Razaak Dhanani, Power of Attorney holder of M/s. Sana International (ii)Shri Sarfaraz Yusuf Dhanani, Partner of M/s. Sana International [absconding] (iii) Shri Shakil Ahmed Fakih, Partner of M/s. Universal Exports (iv) Shri Govinddhar Pandey, Custom House Agent (v) Shri Raja Chandran, Manager of Steamer Agent, M/s. W.W. Shipping Pvt. Ltd., and M/s. Saturn Ship Agencies Pvt. Ltd. (vi) Shri Maqsood Yusuf Merchant, Proprietor of M/s. Super Chemical TRD. LLC, Dubai [absconding]. 10.The Revenue further submitted that an amount of Rs. 56,11,000/- was already recovered/paid by Shri Punit Makharia, Director of SPPL before issue of SCN. The b....
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.... the plea of the Revenue that the case has been adjudicated, vide order dated 30-4-2007, by the Commissioner of Customs (Adj.), Mumbai, he submitted that the date of issue of the said order is 27-7-2007 and the application was filed by the applicants on 23-5-2007. He, therefore, submitted that the order, though passed on 30-4-2007, was issued on 27-7-2007 (and the applicants must have received the order a few days later), i.e., after filing the application, becomes honest/non operative. He submitted the following orders in support of his contention. (i) Admission Order dated 23-8-2000 passed by this Bench in the case of M/s. Pratibha Syntex Ltd. (ii)Order dated 13-2-2001 passed by this Bench in the case of M/s. Emjay Creations [reported in 2001 (131) E.L.T. 716 (Sett. Comm.)] (iii) Interim Order No. 12/2001-Cus., dated 17-5-2001 passed by this Bench in the case of Shri Karappam v. A. Backer. 15.The ld. Advocate of the applicants, with reference to the entertai-ability of an application where the applicant is absconding, referred to para 10 of this Bench's Admission Order No. 20/2005-Cus. dated 26-10-2005 in the case of M/s. Sonam Enterprises and others. He als....
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....on'ble Madras High Court, while disagreeing with the aforesaid judgment of Hon'ble Calcutta High Court held that - "4.....The Settlement Commission however relying upon the decision of Calcutta High Court in Commissioner of Customs (Port) v. Settlement Commission, (cited supra) held that it has no jurisdiction to grant waiver of interest which is not payable under the Customs Act, but under the contract, and which is evidenced by the bond executed by the petitioner...." "5. With respect, we are unable to subscribe to the view taken by the Calcutta High Court......." "6. On a plain in reading of the section, it is clear that the provision enables the Settlement Commission to grant immunity either wholly or in part from the imposition of any penalty, fine and interest under the Customs Act with respect to the case covered by the settlement. Therefore, even interest payable under the provisions of Customs Act can be waived by the Settlement Commission. In the instant case, the petitioner had availed the benefit of notification 51/2000-Cus dated 27-4-2000. The interest has been stipulated under notification 51/2000-Cus dated 27-4-2000. This notification was issued under section 25(1....
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....is governed by the statutory provisions and notifications issued under the statutory provisions, for which reason even Hon'ble Calcutta High Court while delivering the judgment reduced the interest from 24% (which was specified in the bond), to 15% (which was specified vide a notification issued subsequent to execution of bond). (vii) Even if the obligation under bond is deemed as contractual obligation, after admission of the 'case', the Hon'ble Commission vide section 127F (1) and (2) enjoys all the powers of Commissioner, and can therefore vary the terms of such contract, including the liability to interest, in terms of the prevailing Notifications as well as the statutory powers bestowed vide section 127H of the Act. (viii) He further submitted that the Hon'ble Commission is a Tribunal having jurisdiction on several States. The Larger Bench of Appellate Tribunal in Atma Steels Pvt. Ltd. and Others v. Collector of Central Excise, Chandigarh and Others reported in 1984 (17) E.L.T. 331 (Tribunal - LB) has categorically held that the Tribunal having an all India jurisdiction and peculiar features cannot be held bound to the view of any particular High Court irrespective of ....
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.... involved, held that the matters of Settlement Commission and the COFEPOSA are altogether different issues, the orders of the respective authorities should not and cannot be binding or influencing each other. Provisions of the Settlement Commission in Chapter XIVA of the Customs Act, 1962 do not bar an application from a COFEPOSA detenue or an absconder. From sub-section (7) of Section 127C it is clear that an applicant can represent before the Settlement Commission himself or through a representative duly authorized in this behalf. It is, therefore, clear that an applicant's so called abscondance cannot be a bar to entertain his application by the Settlement Commission. If there is a case for levy, assessment and collection of duty, a Bill of Entry and a Show Cause Notice related to the Bill of Entry is also present along with a true disclosure of the duty liability then the case has to be admitted, howsoever be the fraudulent nature of the case. Howsoever, grave the manipulations may be, it could only culminate into an Show Cause Notice demanding duty and/or connected charge of confiscation, fine, penalties etc. Therefore, when a true and full disclosure of the duty liability and....
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....ely acted on the directions of Yusuf. Even if he is caught now and interrogated after such a lapse of time he may not in all probability be able to throw any further light more than what Shri Yusuf Dhanani has brought out. We are of the view that there is no bar, therefore not to admit his application. We however, do not have any mind to grant him unconditional immunities. 22.2Secondly, we take up the issue of admission of the applications filed by the co-applicant Nos. 2 to 7, who all filed their applications after 1-6-2007. Applications filed after 1-6-2007 have to be dealt with as per the amended provisions brought into force after the enactment of the Finance Bill, 2007. It may, however, be appreciated that the full duty demanded in the SCN has been accepted and paid by the applicants. Further, keeping in view the decision taken by the Principal Bench of this Commission in the case of Oriflame India Private Ltd. reported in 2000 (122) E.L.T. 601, in which, inter alia, it was held that in settlement proceedings, a show cause notice has to be dealt with in its entirety for settlement, we take cognizance of the applications filed by the said co-applicants. 22.3The applications f....
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....These goods are liable for confiscation but as they have already been exported, full immunity from penalty cannot be extended. 26.The applicants and some of the co-applicants concerned in the fraudulent exports and imports have by their commissions and omissions have rendered themselves liable for penalties. 27.The entire sequence of events as revealed during investigations and from the allegations levelled in the SCN, it can be safely concluded that Shri Yusuf Dhanani was the main brain cum prime mover in the entire clandestine activity and was also responsible for duty evasion by fraudulent activity. The entire fraudulent activities were under his command and control. He has caused revenue loss for his personal gains. He cannot be granted total immunity from penalty under the Act. Though he has already been in preventive detention and the duties also have been paid and co­operated in the proceeding before the Commission. In so far as Shri Sarfaraz Dhanani is concerned, he had aided and a betted his father. This is also a fact that a COFEPOSA order is still pending against him. His role though active has been only on the instructions of Yusuf Dhanani and though he is not the....