TaxTMI 
TaxTMI 
2016 (11) TMI 855
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....of the Customs Act, 1962? (ii) Whether the Applicant has paid the additional admitted duty liability along with the interest as required by clause (c) of the first proviso to section 127B of the Customs Act, 1962? (iii) Whether the condition of filing of a Bill of Entry as stipulated in clause (a) of the first proviso to section 127B of the Customs Act, 1962 is fulfilled? 3. As far as conditions (i) & (ii) are concerned, the Settlement Commission held in favour of the Petitioner. However, as far as condition (iii) is concerned, the Settlement Commission inter alia held that the same was not complied with by the Petitioner in view of the fact that the requisite Bill of Entry had not been filed before the issuance of the Show Cause Notice. According to the Settlement Commission, the Petitioner had imported four containers for which two separate bills of entry were filed. One Bill of Entry (and which related to one container) was filed before the issuance of the Show Cause Notice whereas the other Bill of Entry (for balance three containers) did not find mention in the Show Cause Notice (for short "the SCN") as it was filed after the issuance of the same. On the basis of this findi....
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.... dated 4th August, 2015. (d) In the meanwhile, the Petitioner received a SCN dated 29th July, 2015 proposing to confiscate the goods covered by both the Bills of Entry. The SCN proposed to invoke penal charges under sections 112 and 114AA of the Act against the Petitioner. Faced with this SCN, the Petitioner, in order to settle the case with the Revenue, filed a Settlement Application (Exh. "A" to the Petition) before Respondent No.4 on 7th October, 2015 seeking settlement of their case under Chapter XIV-A of the Act and also prayed for immunity from fine, penalty and prosecution. (e) On receipt of the Settlement Application, Respondent No.4 issued a notice dated 14th October, 2015 under section 127C(1) of the Act inter alia conveying to the Petitioner that its Application was found deficient on the grounds mentioned in paragraph 2 of the said notice. Accordingly, the Petitioner was directed to explain in writing as to why its Application should be allowed to be proceeded with as envisaged under section 127C(1) of the Act. (f) The Petitioner filed a detailed reply to the aforesaid notice vide its Advocate's letter dated 19th October, 2015 and furnished detailed clarification....
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....d examined the goods much prior to its filing and had also seized the goods. Admittedly, the Petitioner was not allowed to file this Bill of Entry until after the issuance of SCN. However, as soon as the SCN was issued, the Department allowed the Petitioner to file the Bill of Entry. According to Mr Kantawala, the Settlement Commission has proceeded on a completely incorrect footing that the filing of the Bill of Entry should precede the issuance of the SCN. He submitted that there is no such mandate in section 127B of the Act for the Settlement Commission to come to the aforesaid finding. This is more so in the facts of the present case, since the SCN reveals that the containers were searched and seized much prior to filing of the Bill of Entry and which was admittedly filed subsequent to the issuance of the SCN. Even though this Bill of Entry (No.2128700) is not mentioned in the SCN, Mr. Kantawala submitted that the SCN itself reveals that the goods covered under the said Bill of Entry (No.2128700) were also the subject matter of this very SCN and which was sought to be settled by the Petitioner by filing a Settlement Application before Respondent No.4. Looking to these facts, ....
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.... view of the aforesaid statutory provision, Mr Dwivedi submitted that the impugned order cannot be faulted and Respondent No.4 has correctly rejected the Settlement Application of the Petitioner. Consequently, he submitted that there is no merit in this Writ Petition and the same ought to be dismissed with costs. 8. We have heard the learned counsel for the parties at length and have perused the papers and proceedings in Writ Petition including the annexures thereto including the impugned order dated 14th March, 2016. We have also given our anxious consideration to the relevant statutory provisions. To understand the controversy raised in the present Writ Petition, it would be necessary to make note of the relevant provisions of the Customs Act, 1962. Chapter XIV-A of the Customs Act, 1962 deals with settlement of cases. This Chapter contains sections 127A to 127N and was inserted w.e.f. 01-08-1998 by section 102 of Finance (No.2) Act, 1998 (21 of 1998). The object for inserting this Chapter was that the door to settlement with an errant and defaulting tax-payer should be kept open, keeping in mind the primary objective to raise revenue. The Legislature was of the view that a rigi....
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....icant has paid the additional amount of customs duty accepted by him along with interest due under section 28-AA; Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending in the Appellate Tribunal or any Court. Provided also that no application under this sub-section shall be made in relation to goods to which section 123 applies or to goods in relation to which any offence under the Narcotic Drugs and Psychotropic Substances Act 1985 (61 of 1985) has been committed; Provided also that no application under this sub-section shall be made for the interpretation of the classification of the goods under the Customs Tariff Act 1975 (51 of 1975); [***]1 [***]2 (3) Every application made under sub-section (1) shall be accompanied by such fees as may be specified by rules. (4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant." (emphasis supplied) 10. As can be seen from the above reproduction, section 1 Sub-S (1-A) omitted by Act 20 of 2015, S.86. Prior to its omission, Sub-S (1-A) read as under - "(1- A) - Notwithstanding anything contained in sub-secti....