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1999 DIGILAW 180 (CAL)

AMAR STEEL INDUSTRIES v. COMMISSIONER OF CUSTOMS

1999-04-19

AJOY NATH RAY

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AJOY NATH RAY, J. ( 1 ) THESE four writ petitions are taken up together and disposed of by this common order without calling for affidavits. ( 2 ) ARGUMENTS on points of law were heard, after giving notice to the parties for one week, and in my opinion, the matter is so short and simple, that calling for affidavits would be an unnecessary of wastage of time and energy. ( 3 ) EACH of the cases relates to the Kar Vivad Samadhan Scheme. In each of the cases the Designated Authority has rejected the declaration on the basis that there is no show cause notice or notice of demand within the meaning of Section 95 (ii) (b) of the Finance (No. 2) Act, 1998. ( 4 ) IN each of the cases the writ petitioners paid the basic duty on the imported ships which were brought in for dismantling. There was a dispute regarding payment of countervailing duty in each of the four cases. ( 5 ) BY reason of an order passed by the Division Bench of this Court on 17-5-1993, the writ petitioners were allowed to take delivery on furnishing 50% Bank Guarantee of the disputed duty amount and guaranteeing by way of a Bond for the balance 50%. ( 6 ) ALTHOUGH the appellate order was passed only in one of the four cases yet the order has been followed either in an order passed in the first Court in a writ petition or by an endorsement in the corresponding Bill of Entry where the appellate order has been mentioned. ( 7 ) IN each of the four cases the Bill of Entry has received an endorsement regarding the countervailing duty and that endorsement, in my opinion, is a notice of demand within the meaning of Section 95 (ii) (b ). ( 8 ) IN any event, as all the matters are resting in regarding to their decision on the ultimate outcome of the appeal in which the order of 17-5-1993 was passed each of the matters comes within the description of Section 95 (ii) (c ). ( 9 ) IN my opinion, if Clause (c) is satisfied, any further enquiry as to whether Clause (b) is also satisfied is obviously wholly unnecessary. ( 9 ) IN my opinion, if Clause (c) is satisfied, any further enquiry as to whether Clause (b) is also satisfied is obviously wholly unnecessary. ( 10 ) ALSO, since neither the Bank Guarantee nor the personal Bond resulted in actual payment or deposit of any money into the national exchequer, the explanation to Section 87 (m) (ii) (b) does not have any scope of operation. ( 11 ) THUS, the writ petitions succeed in each case. The order of the Designated Authority shall be treated as substituted by an order accepting the declaration of the writ petitioners in each case. ( 12 ) IN case the writ petitioners pay the declared amounts within four weeks from date hereof those shall be accepted by the concerned respondent without demur or protest. In default of such payment the writ petition in question shall stand dismissed with costs. In case such payment is made all benefits of the Kar Vivad Samadhan Scheme shall be extended hereafter for all times to come to the concerned writ petitioners on the basis as if the declaration had been accepted and the payment made thereon in time. ( 13 ) FOR the purpose of making the aforesaid payments the writ petitioners shall be at liberty to cause the payments to be made by the guaranteeing Banks (like the Oriental Bank of Commerce, and upon such payment the Bank Guarantees involved will naturally stand discharged and the appellate order of stay shall also stand vacated because of the terms fixed by the order of the appeal Court itself; however, the writ petitioners shall, upon payment, be under the protection of the Kar Vivad Samadhan Scheme. This order shall finally dispose of all the four writ matters. ( 14 ) UPON payment as aforesaid, the Designated Authority shall issue the necessary certificate of fulfilment under the Kar Vivad Samadhan Scheme. Such certificate to be issued within a fortnight of the date of payment.