2022-TIOL-1024-HC-MUM-ST
Rakesh Industrial Stitching Vs UoI
ST - SVLDRS, 2019 - Petitioner is aggrieved by the order passed by the Designated Committee the rejecting their application by passing a very cryptic order and without spelling out the reason - Inasmuch as it is remarked that "investigation already initiated by department", hence application rejected.
Held: Petitioner ought to have been given a personal hearing before his declaration was rejected as held by the Court in the case of Magnum Management & Services Pvt. Ltd. - 2021-TIOL-524-HC-MUM-ST - Order quashed and the respondent is directed to reconsider petitioner's declaration and pass order as it deems fit but after offering an opportunity of a personal hearing to petitioner - Petition disposed of: High Court [para 3, 4]
- Petition disposed of: BOMBAY HIGH COURT
2022-TIOL-1023-HC-MUM-CX
Sharda Synthetics Ltd Vs UoI
CX - Petitioner is restricting its case only to the extent of the penalty of Rs. Ten Lakhs imposed on petitioner -Petitioner submits that in the order, the Settlement Commission has accepted that petitioner had fully co-operated in spirit of settlement and paid the entire admitted duty liability; has also observed that the applicant's case for cum duty benefit was well founded and applicant had made full and true disclosure of its duty liability and the amount has also been deposited - That there is only one sentence in the penalty portion of the impugned order where the Settlement Commission simply says "Bench grants immunity from penalty to the applicant in excess of Rs. 10,00,000/- and there is no reason given as to why even this penalty of Rs. Ten Lakhs should have been imposed.
Held: It is true that a party will approach a Settlement Commission and has to either accept the opinion of the Settlement Commission in its entirety or not accept but when the Settlement Commission has exercised its discretion to impose penalty of Rs. 10,00,000/-, Bench would have expected the Settlement Commission to at least give some reasons, if not, very elaborate detailed reasons to indicate why it had imposed penalty of Rs. 10,00,000/- - This is particularly in view of the fact that the Settlement Commission has, in the impugned order, appreciated the conduct of petitioner and held that petitioner's claim for duty benefit was well founded and petitioner had made full and true disclosure of its duty liability, that petitioner has already deposited the admitted amount and co-operated with the Settlement Commission in the proceedings before it - Settlement Commission has also concluded that petitioner was entitled to cum duty benefit and settled the case at Rs.57,49,970/- as against the demand made by the department of Rs.69,63,995/- and it was petitioner's case that only Rs. 54,89,101/- was payable and the petitioner had already deposited that amount - With such a background simply saying "Bench grants immunity from penalty to the applicant in excess of Rs. 10,00,000/- (Ten lakhs only)", will not suffice - Right to reason, in our view, is an indispensable part of sound judicial system - Reasons, at least sufficient to indicate an application of mind or the rationale in imposing penalty, should be given in the order - It is also not the case of respondents that petitioner was a habitual offender - Bank guarantee furnished of Rs.10 lakhs while granting ad-interim relief should be cancelled and returned within four weeks on receiving request to that effect from petitioner -Bench interferes with the impugned order passed by the Settlement Commission to the extent of imposing the penalty of Rs. 10,00,000/-: High Court [para 7, 8, 10]
- Petition allowed: BOMBAY HIGH COURT
2022-TIOL-1022-HC-MP-CUS
Shankar Singh Yadav Vs DRI
Cus - Smuggling of gold - Applicant has filed this first bail application under Section 439 of the Code of Criminal Procedure, 1973 and is in jail since 13.4.2022 - Acting on a discreet information, the vehicle was intercepted and during the search of the vehicle, officers of DRI found 3 yellow metal bars wrapped in papers from the specially built cavity under the seat adjacent to the Driver seat - During the investigation the said 3 gold bars weighing 3 kg valuing at Rs.1,58,20,500/- and vehicle bearing registration number MP07-CK-8887 were seized and the accused Vaibhav, Vishal, Shankar (applicant) and Dhiraj stated that they have no legal documents related to these gold bars and the bars are smuggled foreign origin gold bars - Applicant submits that he is a driver and travelled to Ulhasnagar at Mumbai with the other co-accused persons under the direction of co-accused Vaibhav Jain without having any knowledge that co-accused persons are involved in the activity of smuggling of gold; that he cooperated in the investigation and appeared before the investigating agency and his statement was recorded; that the investigation is over and charge sheet has been filed; that, therefore, he be released on bail.
Held: Present applicant and other co-accused persons have admitted in their statements under Section 108 of the Customs Act that they have put gold bars under the seat, therefore, it may be presumed that present applicant had knowledge that smuggled gold was being carried in the said vehicle and he is involved in the illegal transaction of smuggling of huge quantity of gold - Therefore, in view of the prima facie sufficient evidence available against the present applicant on record and bearing in mind that such a grave offence would cause damage to the economy of the nation and larger interest of the country, at this stage this Court is not inclined to grant bail to the present applicant, who is involved in serious offence of smuggling of huge quantity of gold - Application dismissed: High Court
- Application dismissed: MADHYA PRADES HIGH COURT
2022-TIOL-1021-HC-MUM-CUS
Meena Anand Suryadutt Bhatt Vs UoI
Cus - Petitioner [wife of late Anand S. Bhatt] challenges nine orders, all passed by respondent No. 2 by which penalty has been imposed on one M/s TPI India Ltd, its directors and ex-directors - Petitioner is impugning these orders because Mr. Bhatt's name also appears in the impugned orders.
Held : It is the cardinal principle of criminal jurisprudence that where there are allegations of vicarious liability, then there has to be sufficient evidence of the active role of each director - There has to be a specific act attributed to a director or the person allegedly in control of management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company - From the impugned orders, it is clear that the entire charge undisputedly, is levelled against TPI for not fulfilling the advance licence obligations - Nowhere it is stated that Mr. Bhatt was in control and management of TPI as a director or that he was personally responsible for the acts committed by or on behalf of the company - No notice was admittedly issued to petitioner in petitioner's name - That being the case, there was a clear violation of the principles of natural justice - Even show cause-notice issued to TPI did not contain specific allegation against Mr. Bhatt to which he could reply - No opportunity as such was given to Mr. Bhatt to represent against the proposed imposition of penalty - The proceedings against Mr. Bhat were void ab initio - If only a notice had been sent to Mr. Bhatt identifying the specific acts attributable to him, Mr. Bhatt could have represented against the imposition of any penalty and he could have placed on record various facts and circumstances to show that even if any offence was committed by TPI, he had no hand in it - All these circumstances, if he were able to establish them, would have absolved him of the liability of penalty - Even on the question of prejudice, the impugned order imposing the penalty on Mr. Bhatt could not be sustained -Ex- parte impugned orders passed qua Anand Bhatt are quashed and set aside -Petition disposed of in terms of prayer clause (a): High Court [para 12, 13]
- Petition allowed: BOMBAY HIGH COURT
2022-TIOL-1020-HC-MUM-CUS
Expotec International Ltd Vs UoI
Cus - Petitioner was awarded a contract by Gas Authority of India Limited (GAIL) for the purpose of laying a pipeline for their project titled " Dahej-Vijapur Gas Pipeline" - For undertaking the above project, petitioner imported various capital goods - At the time of importation, petitioner had paid customs duty of Rs.57,17,488.20 after availing benefit of Notification No. 27/02-Cus dated 1st March 2002 - Upon completion of the project/contract awarded by GAIL, petitioner re-exported the capital goods under various shipping bills during the period February and April 2004 - Upon re-exporting these goods, petitioner claimed drawback [of the customs duty that petitioner had paid on importation] under Section 74(2) of the Customs Act 1962 read with Notification No. 19/1965 dated 6th February 1965 as amended - In total, petitioner was given a drawback of Rs.41,60,403/- with or without a speaking order - The worksheet that was provided to petitioner while calculating the drawback shows that the drawback was sanctioned considering the period of usage as more than six months but less than one year and, therefore, drawback at the rate of 70% of the duty paid at the time of importation was sanctioned - About seven months later, petitioner received from respondent No. 3 four separate demand notices, all dated 11th July 2005, proposing to recover the drawback granted to petitioner - inasmuch as the department contended that Notification No. 27/02-Cus had been issued for the purposes of allowing temporary imports of leased machinery, equipment and tools for execution of a contract and re-export within 6 months (extendable upto one year) on payment of “retainable” customs duty, i.e., the customs duty minus the amount of drawback; that this meant that the customs duty paid at the time of import had already given the benefit of drawback and as such the drawback payment made had become erroneous - Department's appeal was allowed by Commissioner of Customs (Appeals) by holding that granting of drawback under Section 74 at the time of re-export was contrary to the exemption notification and, therefore, the department was justified in calling upon petitioner to return the drawback amount claimed by and paid to petitioner - A revision application filed under Section 129DD of the said Act also came to be rejected, therefore, the present petition - As against demand of Rs.41,60,403/- made by the department, petitioner has paid a sum of Rs.17,33,415/- and there is a balance amount of Rs.24,26,988/- payable with interest and which is still outstanding.
Held: Notification 27/02 has been issued under Section 25(1) of the said Act and not under Section 74 - There is a duty exemption as provided in Notification 27/02-Cus for those who import machinery or tools for execution of a contract and re-export the same within the prescribed period - This concession was given because the Central Government was satisfied that it was necessary in the public interest so to do, where the importer has taken the goods on lease for use after importation and at the time of importation makes a declaration that the goods are being imported temporarily for execution of a contract - Such conclusions are not prescribed under Section 74 or notification issued under Section 74(2) - Therefore, the concession given to such importer was that he need not pay the entire 100% of the customs duty payable under the said Act but would pay only 15% or 30%, as the case may be - That they do not have to pay the entire 100% and then claim a drawback of 85% or 70%, as the case may be - Hence, those who fall under Notification 27/02 are not entitled to any drawback under Section 74 - Bench is unable to accept the stand of petitioner that drawback has to be given even where a concession has been availed of under Notification 27/02 - Since petitioner had not paid 100% duty availing of Notification 27/02 and had already availed of concession as per Notification 27/02, petitioner is not entitled to any drawback - By paying the concessional rate of customs duty at the time of import, petitioner has already availed of the benefit of drawback and as such the drawback payment made was erroneous - Petition stands dismissed with costs in the sum of Rs.1 lakh - This amount to be paid to respondent No. 4 along with the outstanding amounts of drawback re-payable - These amounts are payable within four weeks of receiving a demand from respondent No. 4: High Court [para 20, 21, 22, 23]
- Petition dismissed: BOMBAY HIGH COURT
