Judgment:
ORDER
Arijit Pasayat, C.J.
1. The only question involved in this petition is whether the Petitioner is entitled to the benefit under the Kar Vivad Samadhan Scheme, 1998 (in short the 'Scheme').
2. According to the Petitioner it is entitled to benefits under the Scheme while the Respondents, stand is that the Scheme is only applicable to cases where a person has a liability in relation to customs duty under the Customs Act, 1962 (in short the 'Act') which is due and payable.
3. Petitioner's case revolves round a communication received from the Government of India, Ministry of Commerce, Directorate General of Foreign Trade (in short 'DGFT'), dated 6th August 1997 (Annexure-C). Under the Scheme even the amount payable comes within the ambit of the concession available. Respondents have taken a stand that the same has no relevance, and in any event that was not a demand notice under the Act and not even a show cause notice.
4. We do not find any substance in Petitioners' plea because the Scheme was introduced in respect of the tax arrears. Relevant clause in the Scheme reads as follows:
'(m) 'tax arrear' means-
(i) In relation to direct tax enactment, the amount of tax, penalty or interest determined on or before the 31st day of March, 1998 under that enactment in respect of an assessment year as modified in consequence of giving effect to an appellate order but remaining unpaid on the date of declaration:
(ii) In relation to indirect tax enactment-
(a) the amount of duties (including drawback of duty credit of duty or any amount representing duty), cesses, interest, fine or penalty determined as due or payable under that enactment as on the 31st day of March, 1998 but remaining unpaid as on the date of making a declaration under section 88; or
(b) the amount of duties (including drawback of duty credit of duty or any amount representing duty), cesses, interest fine or penalty which constitutes the subject matter of a demand notice or a show-cause notice issued on or before the 31st day of March. 1998 under that enactment but remaining unpaid on the date of making a declaration under section 88, but does not include any demand relating to erroneous refund and where a show-cause notice is issued to the declarant in respect of seizure of goods and demand of duties, the tax arrear shall not include the duties on such seized goods where such duties on the seized goods have not been quantified.
Explanationn- Where 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 80 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;
(n) all ' other words and expressions used and not defined in this scheme but defined in any direct tax enactment or indirect tax enactment shall have the meanings respectively assigned to them in those enactments.'
5. The communication to which reference has been made by the Petitioner cannot be said to be either a demand notice or a show-cause notice issued by the concerned authorities under the Act. Further it cannot be termed to be a demand notice because the relevant portion reads as follow:-
'Hence you are advised to pay custom duty Rs. 7,18,000/- with 4% interest and also surrender SIL two times of c.e.f. value of unutilised imported material to the amount of shortfall in export obligation in terms of para 128 and 129 of Hand Book of Procedure 92-97 under intimation to this office.
6. It was merely in the nature of an advice to pay custom duty Along with interest and to surrender the licence. It is to be noted that even a copy of this communication was not sent to the customs Authorities as is evident from the document itself. It cannot be said that action was initiated by the Customs Authorities and/or the communication was made under any provision of the Act. consequently it has to be held that Annexure-c did not relate to any duty due and payable on the basis of any statutory order under the Act. An amount can be said to be due and payable only when the collection thereof can be enforced by the prescribed authority under the relevant statute. The expression 'due' connotes an existing obligation. The expression has been defined in Webster.s Universal Dictionary to mean 'that which is owed; that which custom statute or law requires to be paid; that which any one has a right to demand claim or possess. The expressions 'due' and 'payable' can be construed to be synonymous. Any sum recoverable or payable under a statute would be sum due under that statute. It has to be borne in mind that the word 'due' has various meanings and has to be contextually considered. No liability or demand can be said to have been fastened on the basis of Annexure-C. That being the position the Authorities have rightly held that the Scheme is not applicable to the case of the petitioner.
7. In view of the aforesaid conclusion, if any amount has been deposited pursuant to Annexure-C the same has to be refunded to the Petitioner. We make it clear that we express no opinion on the aspect whether any custom duty is payable or not in respect of the concerned transaction.
8. Dismissed.