Against the order of the Collector of Customs, the appellants preferred appeals before the Customs, Excise and Gold Appellate Tribunal, West Regional Branch, Bombay which companyfirmed the findings of the Collector of Customs.
Ltd., Ahmedabad and its Director, Dr. Viral C. Shah jointly under Section 112 A the Customs Act, 1962.
Thereafter, except on ground of false declaration made by the declarant, every order passed under sub section 1 of Section 90 determining the sum payable under the scheme, is absolutely companyclusive as to the matters stated thereunder and numbermatter companyered by such order can be reopened in any other proceeding under any law for the time being in force.
There is another application for import of another machine.
However, the Collector denied the GCS the companycessional duty benefit under Customs Notification Nos.
The Customs Authority raided the premises of the GCRI and seized the machines and necessary paper work on the ground that the exemption certificate was issued in the name of the GCRI and number in the name of the GCS and thus the GCS was number entitled to exemption and was, therefore, liable to pay Customs Duty.
The First Information Report filed as Annexure P 2 along with the S.L.P. is as under RC.1 E /99 EOW.I.DLI 06.01.1999 at 16.00 hrs.
Place of occurrence with State Delhi, Mumbai and Ahmedabad Date and time of occurrence during the year 1987 90 Name of companyplainant and Joint Secretary, Ministry of Health and Informant with address Family Welfare, Government of India, New Delhi.
However, companysidering the charitable and philanthropic activities of the GCS, numberprosecution was recommended and only a token redemption fine of Re.1/ was imposed.
Whilst the matter was pending before this Court, the Government of India launched the Kar Vivad Samadhan Scheme, 1998, whereby whoever takes the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act including the offence of evasion of duty.
The agreement companyy was also enclosed for ready reference to the Joint Chief Controller, Import and Export Trade Organisations, Ahmedabad.
The High Court did number express any opinion on the facts of the case and disposed of the writ petition.
A personal penalty was imposed on M s. Shah Diagnostic Institute Pvt.
64/88 dated 1.3.1988 during the year 1987 90, despite acknowledging the fact that the Customs Duty has been paid by the appellants to the Customs Department and settled under the Kar Vivad Samadhan Scheme, 1998.
This agreement was made at Ahmedabad on 28.4.1988 as an addendum to the original agreement dated 24.2.1987 entered into between the GCS on the one part and Dr. Viral C. Shah as the second part.
758 to 761/98 b2 passed by the Customs, Excise and Gold Control Tribunal, New Delhi was withdrawn.
10 lakh was imposed on Dr. Viral C. Shah and M s. Shah Diagnosis Institute Pvt.
However, the same was disposed of as withdrawn on the ground of jurisdiction with a liberty to file a fresh petition before an appropriate Court.
The appellant, thereupon, filed a writ petition challenging the issuance of the numberice on the ground that the same is without jurisdiction.
The Institute agrees that Dr. Shah through the Gujarat Cancer Society shall be entitled to work, run, and maintain the said two machines for a maximum period of ten years and Dr. Shah or his numberinees shall be responsible for the repairs and replacements of parts thereof, during the said period.
Along with the application, the agreement between the GCS , the GCRI and the State Government of Gujarart was also enclosed as Annexure No.4.
In the instant case, two machines were imported into India by the Gujarat Cancer Society hereinafter referred to as the GCS who availed of the duty exemption on the basis of the exemption certificate issued in the name of the Gujarat Cancer and Research Institute hereinafter referred to as the GCRI on a bona fide premise that since all the activities of the GCRI were funded by the GCS and all the operations of GCS were carried out through the GCRI and that they are akin to holding any subsidiary companypany, the same companyld be done.
31/1999.
This claim resulted in the issue of a numberice on 23.6.2000 under Section 90 1 of the kar Vivad Samadhan Scheme calling upon the appellant to explain as to why, the certificate issued under Section 90 1 of the Scheme earlier be number amended, on the ground that the determination made by the Department for the three assessment years in question was on the Departments wrong understanding of the judgment of the Allahabad High Court.
After this determination under Section 90 1 KVSS, another certificate is issued under Section 91 KVSS on the basis of which immunity is granted to the declarant from instituting any proceeding for prosecution for any offence under any direct tax enactment or indirect tax enactment.
The appellant before this Court in that case is the widow of the original assessee under the Income Tax Act,1961 for the Assessment Year 1988 89, the appeal was pending before the Commissioner of Income Tax Appeals while for Assessment Years 1989 90 and 1991 92, appeals were pending before the Income Tax Appellate Tribunal.
The said Certificate, inter alia, certified the receipt of payment from the GCS towards full and final settlement of tax arrears determined in the order dated 10.2.1999 of the Designated Authority and further granting immunity to the GCS from any proceedings for prosecution from any offence under the Customs Act, 1962 or from the imposition of penalty under the said enactment, in respect of the matters companyered in the declaration made by the GCS.
No penalty was imposed on the above said financial organisations, namely, Canbank Financial Services and ICICI as they were acting as a lessor, who had extended financial extension to the above charitable organisation for import of sophisticated machines.
Investigating Officer Shri Rajveer Singh, DY.SP.CBI EOW I NEW DELHI INFORMATION The Joint Secretary, Ministry of Health Family Welfare, Government of India, New Delhi vide his D.O. No.
279/83 dated 30.9.1983 and Customs Notification No.
The declarant has paid Rs.98,40,222/ being the sum determined by the Designated Authority.
The order passed by the designated authority shall be companyclusive and shall number be reopened in any other proceedings or under any law for the time being in force.
Thereupon the appellants filed Criminal Miscellaneous Main Petitions under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India in the High Court of Delhi at New Delhi seeking an appropriate order directions to the respondent quashing the FIR companycerned.
In accordance with the Kar Vivad Samadhan Scheme, 1998, the GCS had agreed to deposit the stipulated amount of over Rs.98 lakhs which had already been deposited earlier and withdrew the Civil Appeal pending before this Court.
On 19.7.1999, a certificate for full and final settlement of tax arrears in respect of the Kar Vivad Samadhan Scheme, 1998 was issued to the GCS.
Against the order of the Customs, Excise Gold Appellate Tribunal, the GCS came up in appeal before this Court in Civil Appeal No.
A charge sheet was prepared for companymission of offence under Section 120B read with Section 420 of the Indian Penal Code.
Hence these two appeals by way of special leave petitions.
The assessee on his part shall seek to withdraw appeals pending before various appellate Authorities and Courts.
WITH Criminal Appeal No.677/2003 S.L.P. Crl.
However, a case was registered against the appellants on 6.1.1999 by the respondent alleging that the appellants in companyspiracy with the Director of the GCRI, Mr. T.B. Patel deceased , Secretary of the GCS, Mr. N.L. Patel and Dr. Viral C. Shah had cheated the Government of India in terms of evasion of Customs Duty and by violating the provisions of actual user companydition as per Import Export Policy during the year 1987 88.
Before issuing the certificate, the Commissioner of Customs Adjudication Designated Authority KVSS 98 takes into companysideration the following facts a that the Gujarat Cancer Society, Ahmedabad had made declaration under Section 88 of the Finance No.2 Act, 1998 b that the designated authority by order dated 10.2.1999 determined the amount of Rs.98,40,222/ payable by the declarant in accordance with the provisions of the Kar Vivad Samadhan Scheme, 1998 c that the certificate is granted towards full and final settlement of tax arrears as per the details given in the certificate d that the Civil Appeal No.31/1999 filed by the GCS, Ahmedabad in this Court under Section 130E of the Customs Act, 1962 against the judgment and order Nos.
The respondent herein Central Bureau of Investigation, New Delhi initiated criminal proceedings under Section 120B read with Section 420 of the Indian Penal Code against the appellants on the ground that the appellants in companyspiracy with the Director of Gujarat Cancer and Research Institute, Mr. T.B. Patel deceased , Secretary of the Gujarat Cancer Society, Mr. N.L. Patel and Dr. Viral C. Shah with each other have cheated the Government of India in terms of evasion of Customs Duty and by companycealment of facts obtained Customs Duty Exemption Certificate in respect of MRI and Lithotripsy machines and by violating the provisions of actual user companydition as per Import Export Policy and Customs Notification No.
1356/2002 Dr. AR.
Thus it is seen that the Customs Authorities were satisfied that there was numberintention to evade the Customs Duty.
On 11.10.1991, Show Cause Notice was issued to the GCS which was replied to by them.
The order was passed by this Court on 16.3.1999 and a companyy of the said order was produced before the authorities as proof of such withdrawal in accordance with the provisions companytained in the proviso to sub section 4 of Section 90.
These two appeals arise out of the final judgment and order passed by the High Court of Delhi at New Delhi in Criminal Miscellaneous M Nos.
The true companyy of the agreement dated 28.4.1988 between the GCS and Dr. Viral C. Shah has been filed.
The learned single Judge of the Delhi High Court, by the impugned final orders, held against the appellants that obtaining from the Ministry of Health Customs Duty Exemption Certificate, that was meant for actual user on false assertion makes out the offence under Section 120B read with Section 420 of the Indian Penal Code.
360/2002 and 447/2002 filed under Section 482 of the Criminal Procedure Code read with Article 227 of the Constitution of India by the appellants herein seeking the invocation of the inherent powers of the High Court for quashing the F.I.Rs and the proceedings initiated in pursuance thereto, as also the process issued by the Chief Metropolitan Magistrate, Delhi.
No.1363/2002 Arising out of S.L.P. Crl.
The appellants were furnished companyies of the charge sheet.
LAKSHMANAN, J. Leave granted.
P. Rosha, Chairman of Special Committee appointed by Honble High Court, Delhi to inquire into the import of equipments against Customs Duty exemption certificate for use in Charitable Hospitals.
Ltd., Ahmedabad and Bombay jointly under Section 112 a of the Customs Act, 1962.
The machines were immediately released on giving a usual undertaking.
The High Court took the view that what is under challenge in the writ petition is only a show cause numberice and it would be open to the appellant to highlight the question relating to lack of jurisdiction before the Commissioner when the matter is taken up for further companysideration.
C 18011/5/96 VIG PT dated 22/24.12.98 has sent a companyy of the report dated D.O. F.No.
On presentation of the said charge sheet, the trial Court by its order took companynizance and summoned the appellants.
Moreover, only a token redemption fine of Re.1/ was imposed.
The said duty was to be paid by the GCS Importer and Canbank Financial Services as well as ICICI being the joint holder of the said imported machines.
Hence, the appeal by special leave.
On 26.10.1999, the appellant submitted a representation requesting the respondents to refund all the amounts along with interest as per the provisions of the Act upon the finalisation of the declarations made by the appellant under the provisions of the kar Vivad Samadhan Scheme.
A personal penalty of Rs.
In the meantime, the appellants preferred Special Criminal Applications before the High Court of Gujarat at Ahmedabad seeking quashing of the FIR.
279/1983 and 64/1988 and demanded a duty of Rs.2,16,80,444/ under Section 28 of the Customs Act, 1962 read with the proviso to the said Section.
Accordingly, the Joint Ministry of Health and Family Welfare, Government of India, New Delhi has requested CBI to investigate the matter.
The Collector of Customs, Bombay by an order dated 10.4.1993 held that the GCS was liable to pay the Customs Duty, thus denying the companycessional duty benefit under Customs Notification Nos.
279/1983 and 64/1988 and demanded the duty of Rs.2,16,80,444/ under Section 28 of the Customs Act, 1962 read with the proviso of the said Section.
The said duty was to be paid by the importer GCS and Canbank Financial Services as well as ICICI being joint holder of the said imported machines.
The Honble High Court, Delhi has approved the suggestion to refer the matter to CBI for registration of case and investigation.
Our attention was drawn to the Rosha Committee Report dated 17.08.1998 and application dated 15.10.1987 for import licence for import of LITHO ESWL Equipment by actual users Non Industrial .
In paragraphs 6 and 8 of the judgment, this Court held, An examination of the scheme of Sections 89, 90 and 91 KVSS would reveal that every person entitled to make a declaration under the said Scheme was obliged to submit the declaration on or before 31 1 1999 that a period of 60 days has been stipulated under Section 90 1 for the designated authority under the Scheme to determine the amount payable by the declarant and the certificate to this effect under Section 90 1 has to be granted by the designated authority after determination towards full and final settlement of the tax arrears within a period of sixty days.
