2009 (4) TMI 94

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.... the Customs duty amounting to Rs.21,13,482/- recoverable as aforesaid should not be adjusted from the amount deposited voluntarily (details as per annexure D) ?" 2. A few facts: The petitioner company is a merchant exporter. It purchased finished fabrics and exported the same. Under the Import-Export Policy 1992-97 an incentive was given for exports. Under the DEEC Scheme, an exporter was allowed to import materials specified in the Advance License without payment of duty. On completing the export obligation, the licenses were made transferable and could be sold in the market after the licensing authorities had endorsed transferability on the same. 3. On 20th August 1995, Shri Raju Amarnani, a Director of the petitioner was arrested and ....

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....tice. The aggregate amount of money deposited under coercion between August 1995 and January 1997 was Rs.1.30 crores. 5. A show cause notice dated 8.12.1997 was issued by the respondents in respect of the alleged customs duty evasion and the demand for duty was made amounting to Rs.21,13,482/-. The show cause notice specifically sought to adjust the amount of Rs.21,13,482/- against the aforesaid deposit made by the petitioners. On 18.12.1997, in view of the fact that show cause notice had been issued, this Court passed an order cancelling the bank guarantee given by the petitioners. 6. In 1998-99, Budget, the Central Government introduced the Kar Vivad Samadhan Scheme. On 28.12.1998, the petitioners filed a declaration under Section 69 of....

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....f Rs.21,13,482/-, whereas the respondents coercively recovered Rs.1.30 crores pending investigation would indicate that amounts were not voluntarily paid. The order dated 11.2.1999 rejecting the petitioners' application under the Scheme on the ground that no amount was in arrears against the show cause notice as on the date of filing the application under the Scheme is manifestly incorrect and deserves to be set aside. 8. Reply has been filed on behalf of the respondents by K.V.P. Unii, Assistant Commissioner of Customs (Prev.). It is submitted that allegations against the petitioners are for evasion of customs duty and misuse of DEEC Scheme by the petitioners. In the course of the investigation, the petitioners agreed to pay voluntarily t....

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.... Where a declarant has already paid either voluntarily or under protest, any amount of duties, cesses, interest, fine or penalty specified in this sub-clause, on or before the date of making a declaration by him under Section 88 which includes any deposit made by him pending any appeal or in pursuance of a court order in relation to such duties, cesses, interest, fine or penalty, such payment shall not be deemed to be the amount unpaid for the purposes of determining tax arrear under this sub-clause;" What would be applicable to the petitioners would be Section 87(m)(ii)(b) as the show cause notice was issued on 8.10.1997. 10. The only issue is whether in terms of the Explanation, the amount paid by the petitioners can be said to be the am....