IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.07.2008
CORAM:
THE HONOURABLE MR. JUSTICE K. CHANDRU
Writ Petition Nos.10519 to 10521 of 1999
& WMP Nos.14900 to 14902 of 1999
M/s.East Coast Hospitals Limited
90, Thiruvalluvar Salai
Pillaithottam
Pondicherry 605 013
.. Petitioner in all W.Ps.
Vs.
1. The Assistant Commissioner of
Customs (Group 5B)
Office of the Commissioner of Customs
Custom House, Chennai 1
2. The Commissioner of Customs (Seaport)
Designated Authority for KVS Scheme
Custom House, Chennai 1
3. The Postmaster
General Post Office
Chennai 1.
.. Respondents in all W.Ps.
Petition filed under Article 226 of the Constitution of India for the issuance of writ of mandamus to direct the second respondent to issue a Certificate in Form 2B in respect of the Declarations filed by the petitioner in respect of the Demand Notice No.S.Misc.715/94 Acc.S.30/512/96, s.23/648/93 ACC. Dated 22.10.1996; Notice No.S.23/123.93 Gr.5B dated 21.12.1995; and Notice No.S.Misc.715/94, ACC.S.30/512/94 ACC, S.23/407, 464, 648 and 468/93 dated 27.9.1996 respectively and acknowledged by the second respondent on the 17th December 1998.
For Petitioner : Mr.Muthu Kumar for
Ms.Anita Sumanth
For Respondents : Mr.Thenkodinekan, SCGSC
O R D E R
The prayer in the Writ Petitions is for a direction to the second respondent to issue Form 2B in respect of the Declarations filed by the petitioner against the Demand Notice No.S.Misc.715/94 Acc.S.30/512/96, s.23/648/93 ACC. Dated 22.10.1996; Notice No.S.23/123.93 Gr.5B dated 21.12.1995; and Notice No.S.Misc.715/94, ACC.S.30/512/94 ACC, S.23/407, 464, 648 and 468/93 dated 27.9.1996 respectively and acknowledged by the second respondent on 17.12.1998
2. It is seen from the records that the petitioner was running a Hospital at Puducherry. The petitioner was seeking exemption in terms of the Notification No.64/88/Customs dated 1.3.1988, which exempts customs duty in respect of import of equipments satisfying the requirements under the First Schedule to Customs Tariff Act, 1975.
3. The petitioner imported Ultra Sound Scanner, a blood gas analyser, a computerised treadmill and multi channel recorder. These were brought in to the Customs with Bill of Entries as listed out in paragraph 7 of the affidavit. When the petitioner sought for clearance of the said goods in terms of the Notification No.64/88, as the exemption has not been issued by the Director General of Health Services, the first respondent permitted the clearance of the goods granting exemption on condition that the petitioner furnishes bank guarantee to the extent of 100% duty payable. The petitioner furnished bank guarantee from the State Bank of Travancore covering the full amount of duty.
4. Thereafter, the first respondent proposed the levy of customs duty and issued demand notices dated 21.12.1995, 27.9.1996 and 22.10.1996, demanding duty in respect of the aforesaid items imported by the petitioner. A Writ Petition was filed by the petitioner being W.P.No.17103 of 1996 to set aside the demand notice dated 21.12.1995.
5. The first respondent, in the meanwhile, issued another notice under section 28(1) of the Customs Act demanding duty of Rs.24,36,655/- in respect of the four items imported by them. The petitioner once again filed another Writ Petition being W.P.No.15373 of 1996, restraining the respondent from making any assessment or demand of recovery of customs duty.
6. The exemption requirement was pending consideration by the DGHS, and the matter was getting delayed. The petitioner however received a letter dated 10.6.1988 from the Deputy Director of Health Services, rejecting his application for the customs duty exemption. This once again constrained the petitioner to file another Writ Petition being W.P.No.9066 of 1998.
7. In the meanwhile, the Central Govt. introduced Kar Vivad Samadhan Scheme under section 88 of the Finance Act, (No.2/ 1988), by which an assessee was given opportunity to make a declaration to the designated authority in accordance with the provisions of Section 89 in respect of the tax arrears and where such a declaration is made, the tax payable by the declarant shall be determined in accordance with the provisions of Sec.88.
8. Therefore, the petitioner in order to avail the benefit of the Samadhan Scheme gave a declaration in respect of the Demand Notice on 17.12.1998.
9. Thereafter, the Section 90 of the Finance Act provides the time and manner of payment of tax arrears. In terms of Section 90, within sixty days from the date of receipt of the declaration under section 88, the designated authority shall by an order, determine the amount payable by the declarant in accordance with the provisions of the Scheme and grant a certificate in such form as may be prescribed to the declarant setting forth therein the particulars of the tax arrears and the sum payable after such declaration towards full and final settlement of the tax arrears.
10. It is also stated that if any false declaration is made, the assessee will get disqualified from availing the scheme. Section 90 (2) also provides that once the amounts are determined by the designated authority, 30 days time is given for making the payment from that date.
11. It was the stand of the petitioner that after filing the declaration, they did not receive any demand for payment of duty from the designated authority and therefore they were awaiting for a communication in this regard. When they did not receive the certificate from the designated authority as on 31.3.1999, they approached the authorities to find out the fate on their declarations. But to their shock, they found that the declaration has been accepted by the authorities and the Certificate in Form 2-B was also sent to them.
12. But the contention raised by the petitioner was that the said certificate, though admittedly, was sent by Registered Post with acknowledgement due, they have not received the same. Therefore, they have filed the present Writ Petition seeking for direction to the respondents to furnish the 2B form and thereafter they are obliged to pay the said amount.
13. Notice was ordered in the Writ Petition. On receipt of the notice, on behalf of the respondents, a counter affidavit dated 10.9.1999 was filed by the Assistant Commissioner of Customs (Legal Section). In paragraph 5 of the counter affidavit, it is stated that the 2B certificate was sent by RPAD to the petitioner’s address and the said letter came back undelivered on 3.3.1999 with the postal endorsement on the cover stating that it was not claimed. Therefore, they have taken a stand that since the petitioner has not availed the Samadhan Scheme, they are not eligible for any benefit and if at all any mischief is played by the Postal Department, then the Customs Department is not responsible for the same.
14. Taking note of the counter affidavit, this court by an order dated 11.9.2006 directed the postal Department, namely the third respondent to file an affidavit setting out the circumstances under which the postal cover was sent back as unclaimed.
15. Pursuant to the direction, the third respondent has filed a counter affidavit dated nil (December 2006). In paragraph 4, they have stated that the records relating to the particular tabal was not available, as the records were destroyed within the time stipulated. However, in paragraph 5, it is stated as follows:
“5. I submit that as per the case file available with the ACGSC, who is also the ACGSC for the respondents 1 and 2, the respondents 1 and 2 have filed only the obverse side of the wrapper of the Registered letter under reference. Postmen usually write the remarks for non-delivery only on the reverse side of the Postal article. Both the obverse and reverse side of the Registered letter was called for from the first and second respondents on 20.9.2006 but so far nothing was received. In the absence of reverse side of postal article and the relevant records of the Post office, the third respondent could not say when the article was received for delivery, whether it was sent through postman for delivery, whether notice notice was served to the addressee, whether second attempt was made to deliver the article, how many days the article was kept in deposit at the Delivery P.O.etc., I submit the procedure as stated above.”
16. Therefore, in the light of the above whether the petitioner is eligible for any relief? is the only question in the present case. The respondents are not able to show the original cover and the entry made on the reverse side of the cover. The petitioner also submitted that when any Scheme is beneficial to them, there was no reason as to why they would not have received the tapal and availed the benefit.
17. Therefore, in the light of the above circumstances, this Court is of the opinion that when a Scheme grants benefit to an assessee and provides modality for availing such a benefit and the petitioner having submitted the due declaration, the respondents have also granted a Certificate and, only because of the dislocation caused by the Postal Department, they cannot be denied to avail the benefit of the said Scheme. Their contention is bonafide.
18. In the light of the same, without blaming any parties to the state of affairs, this court, in the interest of justice and overall circumstances of the case, hereby directs the respondents to furnish 2B Certificate, which was sent earlier as admitted in paragraph 5 of the counter affidavit, within a period of two weeks from the date of receipt of a copy of this order. On furnishing such a certificate, the petitioner is directed to comply with Section 90 (2) of the Finance Act. The Writ Petitions are disposed of accordingly. No costs. Consequently, the connected Miscellaneous Petitions are closed.
ajr
To
1. The Assistant Commissioner of
Customs (Group 5B)
Office of the Commissioner of Customs
Custom House, Chennai 1
2. The Commissioner of Customs (Seaport)
Designated Authority for KVS Scheme
Custom House, Chennai 1
3. The Postmaster
General Post Office
Chennai 1