TaxTMI 
TaxTMI 
2007 (10) TMI 83
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....M drive, 50X and they had not placed any order for supply of the same. 3. On 24.7.2000, the appellant - Managing Director of Moonstar Automation Private Limited claimed the goods. The goods were examined in the presence of the appellant and one Shanthilal of Goutham Enterprises and two independent witnesses. The consignment found to contain 246 Nos. of Acer 50X CD ROM drive, 736 Nos. of Cellular mobile phones with chargers and battery back, 35 Nos. of Ear phones and 100 Nos. of plastic flip top and 6 Nos. of hard disc drive for a total CIF value of Rs.43,56,189/-. Since the description and the value of the goods did not tally with the bill of entry, the consignment was seized on 24.7.2000 under a mahazar. The SIIB of the Customs House, Chennai conducted further investigation by recording statements from the appellant, clearing house agent, the steamer agent and one S. Janakiraman. After gathering such information on 19.9.2000, the first respondent issued a show cause notices to the appellant calling upon the appellant to show cause as to why: "(i) the value of the goods should not be revised to Rs.43,56,189/ (CIF) and Rs.57,87,200/- (Market value) from Rs.4,71,450/- (C....
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....ion or otherwise of the goods, but not apply to the person like the appellant, who has calculatedly filed the bill of entry in the name of third person and sought to evade the duty legally payable for clearance of the goods. The action of the appellant is nothing but smuggling the goods into India without payment of duty, which would not in any way come within the purview of Section 127-B or 127-C. If the duty evaders like that of the appellant are allowed to settle the case before the Settlement Commission, then the other provisions - Sections 110 and 111 would virtually become meaningless. The order of the learned single Judge requires no re-consideration. 8. We have heard the argument of the learned counsel on either side and perused the materials on record. 9. The point to be resolved in this case is, whether in the facts and circumstances of the case, the power conferred on the Settlement Commission under Section 127-B would include the case of the present nature, so as to have the case settled before the Settlement Commission. 10. Chapter XIV-A of the Act provides for "Settlement of Cases". Section 127-A defines certain terms under Chapter XIV....
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....e for interpretation of the classification of the goods under Customs Tariff Act, 1975; (vii) Where any dutiable goods, books of account, other documents or any sale proceeds of the goods have been seized under Section 110, the application could be filed only after the expiry of 180 days from the date of seizure (sub-section (2)); (viii) Every such application shall be accompanied by such fee specified by Rules; (ix) An application filed shall not be allowed to be withdrawn." 12. Now, let us consider whether the facts of the case come within the above requirement of the statutory provisions. As stated supra, a show cause notice dated 19.9.2000 has been issued under Section 124 of the Customs Act against the appellant by the proper officer. The relevant clauses in the show cause notice are as follows: (a) the goods filed under Bill of Entry No.235337 dated 19.7.2000 do not conform to the declaration made in the bill. As against the declaration of 300 Nos of Acer CD ROM Drives valued at Rs.4,71,450/- (CIF), the examination of the same revealed that the contents to be Mobile Phones of various models, HDD in addition to what was declared and totally valued ....
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....not applicable rather put against the appellant, as there is no provision specifically contained in the Customs (Settlement of Cases) Rules, 1999. Thus, all the conditions of the main provision of Section 127-B(1) have been complied with in this case. 15. Now, reverting to the conditions stipulated in the proviso, which are extracted supra, it is an admitted fact by the respondent themselves that the appellant had filed bill of entry in respect of import of goods, as could be seen from the extracted portion of the show cause notice. So, condition No.(i) of the proviso has been complied with. The proper officer has also issued a show cause notice dated 19.9.2000 in relation to the bill of entry filed by the appellant. As such, condition No.(ii) contemplated in the proviso has also been complied with. Admittedly, in this case, the additional amount of duty accepted by the appellant in his application exceeds Rs.2 lakhs. Hence, condition No.(iii) of the proviso has also been complied with. No case is pending either before the Appellate Tribunal or before the Court in respect of the disputed bill of entry. Hence, condition No.4 of the proviso has also been complied ....
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....p; dials and cases for watches 10 : Zip fasteners 11 : Omitted 12 : Omitted 13 : Silver bullion." The goods involved in the present case is also not in relation to which any offence under Narcotic Drugs and Psychotropic Substances Act, 1985 has been committed. Hence, condition No.(v) of the proviso is also not applicable to the facts of the present case.&nb....
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.... the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation, such fine as the said officer thinks fit. The proviso to Section 125 provides that such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. Sub-section (2) of Section 125 casts an obligation on the owner of the goods that in addition to the redemption fine he is liable to pay any duty and charges payable in respect of such goods. Hence, we are of the view that even a show cause notice issued under Section 124 for confiscation of goods under Section 111(i) (l) and (m) is not outside the purview of Section 127-B. 18. A contention has been raised on behalf of the Department that under Section 127-A, the terminology "case" has been defined to mean "any proceeding under this Act or any other Act for the levy, assessment or collection of customs duty ....
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....concealment has been investigated and deducted by the Department, the importer cannot be considered as a person bona fide misclassified the goods and he is not entitled to have a case settled before the Settlement Commission. We are afraid that the said decision of the Supreme Court judgment can be made applicable to the provisions contained in the Customs Act. 20. It is to be seen that the situations are totally different in the Supreme Court cases, in the sense, that the Supreme Court considered the provisions of the Income-tax Act, as they were obtaining during the relevant period 1978 and 1979 i.e., prior to the amendment incorporated in the year 1991, which is amply clear from paragraph No.15 of the Express News Paper case ((1994) 2 SCC 374), wherein it has been categorically stated that it was not necessary to notice the effect of the legislative change brought about in 1991. The amendment incorporated in the provision in the year 1991 has completely changed the law, which fact has not been brought to the notice of the learned single Judge. Further, there is a clear distinction in the Income-tax Act provisions and provisions contained in the Customs Act. In ....