TaxTMI 
TaxTMI 
2016 (6) TMI 1343
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....ectorate of Revenue Intelligence, Mumbai Zonal Unit. The said applications were received in the Secretariat of the Commission on 16-6-2015 and the same have been registered as 'SA (C) 180 & 181/2015' respectively. 2. Specific information received by the Directorate of Revenue Intelligence (DRI), Mumbai Zonal Unit, indicated that a passenger by name Vihari Rajesh Sheth, holding Indian Passport No. Z-2500490 arriving by flight SQ-426 from Singapore at Chhatrapati Shivaji International Airport, Mumbai at around 8.30 hrs on 30-7-2013 was in possession of high value gold jewellery (studded with diamonds) and would smuggle the same into India. The information further indicated that the said passenger had adopted the same modus operandi to smuggle high value jewellery in the past which were sold in the domestic market in Mumbai through the jewellery showroom owned by her family, by name M/s. Vihari Jewels at Hotel Grand Hyatt, Santacruz (East), Vakola, Mumbai. 2.1 Based on the aforesaid information, the said passenger was intercepted on her arrival at CSI Airport, Mumbai on 30-7-2013 after she cleared Customs through green channel, the facility meant for the passengers who....
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....investigation statement of Mrs. Vihari Rajesh Sheth (the main applicant) inter alia stated that :- (i) her father Rajesh Sheth, a diamond trader conducts business in the name of House of Gems, Singapore and Vihari Jewels Pte. Ltd., which is also based in Singapore; (ii) she was informed by her father that jewellery showroom was being run in her name at Hotel Grand Hyatt, Mumbai and that she was not aware as to whether her uncle Jiten Sheth was a partner in the said company or the stakes held by her father in the said company; (iii) she admitted to have carried diamond studded gold jewellery from Singapore on 30-7-2013 and to have evaded payment of Customs duty leviable in India; (iv) she had smuggled the jewellery by concealing the same in her inner garments; (v) she had not declared before the Customs, the jewellery being carried by her. 2.4 Mrs. Vihari Rajesh Sheth (the main applicant) was arrested under Section 104 of the Customs Act, 1962 on 1-8-2013 and subsequently granted bail by Hon'ble Bombay High Court on 26-9-2013. 2.5 During the cour....
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....unaccounted diamond studded gold jewellery seized from Vihari Jewels were the said invoices. 2.10 Mr. Jiten P. Sheth in his further statement inter alia stated that :- (i) jewellery seized from his showroom was procured by him from a company by name Vir Gems which was owned by one Jitendra Katera; (ii) the seized jewellery was procured by him on different occasions for which 4 separate bills were raised by the supplier; (iii) the delivery was taken by him personally for which no acknowledgement was obtained by Jitendra Katera; (iv) he was not aware as to whether any other jewellery was procured by him from Jitendra Katera; (v) he was neither aware about his residential details of Jitendra Katera nor was he aware about the exact location of his office 2.11 The office premises of Vir Gems situated at 108, Vinod Villa, 66, Cable Cross Lane No. 3, Mumbai was searched and statement of Shri Jitendra Kitavat, proprietor of Vir Gems was recorded wherein, he inter alia stated that :- (i) he had never supplied any jewellery to Vihari ....
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....y has been sold to many buyers and a thorough investigation is required to be conducted to corroborate the evidences available on record. Also that Vihari Sheth appears to have been employed as a conduit by her family in India and Singapore to smuggle jewellery and sell them through their family showroom in Mumbai. Vihari Sheth has travelled 32 times in the past (5-3-2011 to 30-7-2013) and the submissions made by various persons during the course of investigations also indicate that she appears to have smuggled gold jewellery/diamonds in her previous trips also, which is pending execution. Since Shri Rajesh Sheth and Mrs. Manisha Sheth are yet to join the investigation. 2.14 From the above investigations conducted so far, it appears that :- (i) The applicant Mrs. Vihari Rajesh Sheth was a business women (partner of Vihari Jewels Pte. Limited, Singapore) engaged in the business of trading of diamonds/diamond studded gold jewellery in Singapore. The said business was being operated in the name of Vihari Jewels Pte. Limited in which her mother Mrs. Manisha Sheth was also a partner. She along with her Mumbai based uncle the co-applicant Jiten Sh....
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....ing active role in India in disposal of the jewellery smuggled in by Mrs. Vihari Sheth through his showroom Vihari Jewels (interestingly, the showroom is named after her). Admittedly, on 3 different occasions, he had received smuggled diamond studded gold jewellery from Mrs. Vihari Rajesh Sheth for selling the same through his showroom. During the course of search of his showroom Vihari Jewels situated at Hotel Grand Hyatt, Mumbai on 8-8-2013, 41 pcs. of unaccounted diamond studded gold jewellery was recovered and seized under the provisions of the Customs Act, 1962. (iii) The said seized goods i.e., 41 pcs. of diamond studded gold jewellery valued at Rs. 2.05 crores appears to have been smuggled by Mrs. Vihari Rajesh Sheth in the past 32 foreign visits made by her. The seizure of unaccounted diamond studded gold jewellery from the showroom of Jiten Sheth corroborates the statement given by him wherein he admitted that he had received on 3 different occasions, smuggled jewellery from Mrs. Vihari Sheth for being sold in his showroom. Further, Jiten Sheth in order to misguide the investigators submitted 04 invoices of Vir Gems, Mumbai claiming that the 41 pcs. of seize....
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....valued at Rs. 2,05,21,000/- should not be confiscated under Sections 111(d), 111(m) and 111(l) of the Customs Act, 1962; (ii) penalty should not be imposed upon them under Section 112(b) and 114AA of the Customs Act, 1962. 2.18 This show cause notice covers the seized goods i.e., goods recovered from Mrs. Vihari Rajesh Sheth on 30-7-2013 at CSI Airport, Mumbai and from the showroom of Vihari Jewels, Hotel Grand Hyatt, Mumbai on 8-8-2013. For the goods smuggled in the past of which there are indication in the private records and data stored in electronic devices, the investigations is on and would be dealt separately in due course. Further, role of Rajesh Sheth and Mrs. Manisha Sheth is also under investigation, who are yet to join the investigation. Action if any against them would be dealt with separately in due course. 3. Applicant in her application has made the following submissions :- 3.1 The applicant submits that the jewellery from her possession was purchased abroad for her personal use for attending close family friend wedding which was to be held in Delhi from 9-8-2013 to 13-8-2013. Copies of the bill and copy of the said weddi....
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....bsp; for directing consequential refund if any after adjusting dues of the applicant under said show cause notice, dated 27-1-2014. (iv) for grant of immunity from prosecution under Customs Act, 1962. (v) for such other and further reliefs as may be deemed fit in the facts and circumstances of the case. 4. Co-applicant in his application has submitted as under :- 4.1 The co-applicant submits that the applicant has denied the jewellery seized from. M/s. Vihari Jewels at Hotel Grand Hyatt, in Mumbai is imported by her. Although, acquisition thereof has been doubted by recording the statements and alleging submission of false invoices, it is not established by any tangible evidence that such jewellery seized from Vihari Jewels, Mumbai was of foreign origin and are carried in India by her. The co-applicant denies that this jewellery seized at Vihari Jewels, Mumbai are sourced from Vihari Jewels Pte. Ltd., Singapore or any foreign company directly or indirectly. 4.2 The co-applicant submits that, since the show cause notice does not quantify duty liability he has self assessed the amount of duty of Rs. 73,97,821/- for fil....
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....C/Inv-08/2013-14, dated 27-1-2014 under Section 124 of the Customs Act, 1962 was issued to :- (i) Ms. Vihari Rajesh Sheth asking her to show cause as to why the diamond studded gold jewellery and wrist watch seized from her on 30-7-2013 collectively valued at Rs. 2,45,00,000/- should not be confiscated under Sections 111(d), (l) and (m) of the Customs Act, 1962 and why penalty should not be imposed upon her under Section 112 of the Customs Act, 1962; (ii) Mr. Jiten Sheth and Ms. Vihari Rajesh Sheth were asked to show cause as to why the diamond studded gold jewellery seized from the showroom of Mr. Jiten Sheth on 8-8-2013, valued at Rs. 2,05,21,000/- should not be confiscated under Sections 111(d), (l) and (m) of the Customs Act, 1962 and why penalty should not be imposed upon them under Sections 112(b) and 114AA of the Customs Act, 1962; 6.3 Separate Show Cause Notice F. No. DRI/MZU/C/Inv-08/2013-14, dated 13-1-2015 under Section 124 of the Customs Act, 1962 covering the past consignments was issued to Ms. Vihari Seth and others including nine persons to whom the smuggled jewellery was sold, wherein confiscation of the ....
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....ken this plea only in her 3rd statement recorded by the DRI on 7-8-2013 i.e. after 8 days of the incident. Such belated recourse to this defence clearly shows that it is an afterthought on legal advice. The manner of carrying it clearly belies the claim and betrays the intent. Further, even if she was carrying the jewellery for her personal use, she was bound to declare it to the Customs. Instead, she had filed 'NIL' declaration. The very fact that the high end jewellery was concealed in the upper and lower undergarments of Ms. Vihari Sheth, and could be recovered and seized only by way of her personal body search, clearly points to the inescapable conclusion that she was seeking to smuggle the jewellery by concealment. The fact that she has been smuggling gold jewellery in the past, using this modus operandi, is clearly evident from various evidences on record which have been duly set out in the above show cause notice. 6.7 It is humbly submitted that the present applications are neither admissible nor eligible for settlement under law, for following reasons : 6.8 The subject goods i.e. diamond studded gold jewellery are covered under Section 123 of the Customs Act....
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....es only in the event of an ambiguity or the plain meaning of the words used in the Statute would be self defeating." (Page 14) (2) Hon'ble Supreme Court in Grasim Industries Ltd. v Collector of Customs, Bombay [2002 (141) E.L.T. 593 (S.C.)] has followed the same principle and has observed: "Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for court to take upon itself the task of amending or altering the statutory provisions." (Para 8) (3) Hon'ble Supreme Court has again in Union of India v. Ind-Swift Laboratories Ltd. [2011 (265) E.L.T. 3 (S.C.) = 2012 (25) S.T.R. 184 (S.C.) held : "A taxing statute must be interpreted in the light of what is clearly expressed. It is not permissible to import provisions in a taxing statute so as to supply any assumed deficiency...." (para 19) (4) Hon'ble Supreme Court in Tata Consultancy Services v. State of A.P. [2004 (178) E.L.T. 22 (S.C.)], has held that : ....
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....ablish the proper import of the goods into the country." (Para 21) (2) The Hon'ble High Court of Judicature at Madras in the case of Optigrab International v. Government of India [2010 (253) E.L.T. 722 (Mad.) has observed that : Chapter XIVA of the Customs Act, being an exemption to the normal procedure contemplated under the Act and occurring in a fiscal statute, has to be necessarily construed strictly, the scope of the proceedings cannot be unduly enlarged." The Court has also held that when the applicant seeks to avail benefit of settlement, the provisions of Sections 127A and 127B are to be strictly construed. There is no force in the contention of the Learned Counsel for the appellant that the provisions are to be liberally construed", (para 26) (3) The Hon'ble High Court of Delhi in the case of Commissioner of Customs v. Ashok Kumar Jain [2013 (292) E.L.T. 32 (Del.)] has ruled that : "if parliamentary intention is to exclude adjudication by Customs Authorities in respect of baggage claim, from the purview of the Commission's Jurisdiction, surely such intention would have been more clearly manifested like in the case....
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....ons, on the basis of erroneous past precedents which are apparently bad in law and are under challenge. 6.14 Incomplete and Selective Disclosure - (i) As per Section 127B of the Customs Act, 1962, an application for settlement can be made in respect of a "case". The term case has been defined in clause (b) of Section 127A of the Customs Act, 1962, to mean "any proceeding under this Act for the levy, assessment and collection of customs duty, pending before an adjudicating authority on the date on which an application under sub-section (l) of Section 127B is made". (ii) The current application is an off-shoot of investigations in which two show cause notices were issued -- one pertaining to live initial seizures and another concerning the past smuggling of similar high end gold jewellery. The first SCN dated 27th January, 2014 pertains to the seizure of diamond studded gold jewellery and other high end goods from Ms. Vihari Sheth at the Mumbai International Airport on 30-7-2013 as well as those gold jewellery seized on 8-8-2013 from the showroom owned by her paternal uncle Shri Jiten Seth. The second SCN dated 13-1-2015 w....
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....c)]. Settlement Commission's earlier Order No. 67/FINAL ORDER/CUS/KNA/2015, dated 21-4-2015 in the case of Johir Ali Ismail Harenkar v. Commissioner of Customs (C.S.I. Airport, Mumbai) and also Order No. 22/FINAL ORDER/CUS/RB/2015, dated 16-2-2015 in the case of Chirag Shashikant Patel v. Commissioner of Customs (C.S.I. Airport, Mumbai), relies upon the ratio of the case of Ashok Kumar Jain [2009 (247) E.L.T. 893 (Sett. Comm.)] which was upheld by Hon'ble Delhi High Court as reported in [2013 (292) E.L.T. 32 (Del.)]. However, perusal of the Order in the case of Ashok Kumar Jain reveals that facts of the said case are clearly used out of the context. The judgment of the Hon'ble High Court was in the context of baggage. In fact, the judgment categorically says that if baggage were to be excluded, then it would have been mentioned in Section 127B(i) proviso. Further, in the said case, the applicant had declared in the prescribed form of Disembarkation card (Customs Gate Pass), value of the goods carried by him as Rs. 12,000/- which on verification, was found to be more than Rs. 30,00,000/-. Also, in the said case, the SCN had demanded duty on the seized goods and did not propose absol....
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....cations Nos. SA (C) 180-181/2015, both filed on 16-6-2015 by Ms. Vihari Rajesh Sheth & Mr. Jiten Sheth. In the alternative, the said applications may be kept in abeyance, till disposal of the said two writ petitions with Lodging Nos. 1589 of 2015 & 1673 of 2015, respectively, filed by the department before the Hon'ble Bombay High Court. 7. In compliance of the directions given during the personal hearing held on 27-7-2015, common written submissions dated 7th August, 2015 on behalf of both the applicants along with list of case laws were filed and copies submitted to Revenue on 18-8-2015. 7.1 The contention raised therein by the applicant and the co-applicant could be summarized as under :- (i) Section 123 of the Customs Act, 1962, not applicable since the goods are 'manufactures of diamond' which stand denotified from 26-10-1989. Legislative history of Section 123 ibid was given. (ii) Central Government in their order in Shabbir Eshakali Patanwala case held that if precious stones are predominant such jewellery would be sold as diamond jewellery and not gold jewellery and the goods involved are diamond jewellery....
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....nue, Addl. Bench, Mumbai was advised vide Principal Bench's letter dated 6-8-2015 not to pass any order in the matter and vide their letter dated 10-11-2015 conveyed withdrawal of their instruction dated 6-8-2015 and also conveyed that there was no need for constitution of larger Bench in view of Delhi High Court's decision in the Additional Commissioner of Customs v. Ram Niwas Verma in W.P. [C] No. 7363/2014 and C.M. No. 17221/2014, dated 25-8-2015 = 2015 (323) E.L.T. 424 (Del.). Hon'ble High Court however vide their order dated 23-11-2015 ordered - "We are informed by the Learned Counsel for the parties that a new Bench of the Settlement Commission has been constituted which shall be hearing the matter on merits. We have also been informed that the Chairperson of the Principal Bench of the Settlement Commission has passed an order on 10-11-2015 in which there are certain observations with regard to the maintainability and merits of the matter. We direct that the Bench which has been constituted shall decide the case both on maintainability and merits without being influenced by any observations made in the order dated 10-11-2015. The writ petition stands disposed of." ....
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....l.) (9) Addl. Commissioner of Customs v. Ram Niwas Verma - 2015 (323) E.L.T. 424 (Del.) (10) CC, Customs v. Avinash Dawar - 2015 (326) E.L.T. 639 (Del.) - Re-export could not be allowed by Settlement Commission. In fact, case of gold smuggling of gold by carriers by concealment was liable for absolute confiscation. (1) Samynathan Murugesan v. Commissioner - 2010 (254) E.L.T. A15 (S.C.) (2) Abdul Razak v. UOI - 2012 (275) E.L.T. 300 (Ker.) (3) Alyakannu v. Commissioner of Customs - AIR Chennai 2009 (247) E.L.T. 21 (Mad.) - From the facts of case and statements recorded by the concerned persons, it was obvious that it was conscious and premediated attempt to smuggle the goods, coming on top of 32 short visits in past over two years despite being fully aware of Customs Laws by resorting to concealment and filing NIL declaration on her arrival, such a covert act of smuggling when exposed could not be allowed to be undone by way of settlement by allowing....
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....eeded with on 23-6-2015 which decision has remained unchallenged and thereafter only logical course open is to follow the procedure laid under 127C of the Act to settle their case. (ii) Diamond jewellery as distinct from gold jewellery is not covered under Section 123 of the Customs Act, 1962 as can be seen from the legislative history of Section 123 (erstwhile Section 178A of the Sea Customs Act) which clearly shows that while prior to 26-10-1989, Section 123(2) applied to "gold, diamonds, manufacturers of gold or diamonds" and after this date the Section applied to "Gold (and manufacturer thereof) watches and any other class of goods". (iii) Reliance was placed on Shabbir Eshakali Patanwala - 2014 (314) E.L.T. 854 (401) case to press home the point that it was the predominant value test which determines whether the jewellery would be known as gold jewellery or diamond jewellery. (iv) Reliance was placed on Shrenik J. Kothari v. CC, Madras - 2003 (161) E.L.T. 1177 (T-Chennai) to claim that Section 123 was not applicable to diamonds after the amendments to Section 123. (v) Section ....
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....epresentative of Revenue reiterated the submissions already on record vide their report dated 9-3-2016 to oppose the contentions raised on behalf of the applicant. He also sought seven days time to make a written submission. (d) Both the parties were advised to hand over copies of their submissions to the Secretariat and to each other to save time so that their objections if any could be filed within 15 days. 7.6 The applicants made further written submissions, received in the Secretariat of the Bench on 17-5-2016 in response to Revenue's submission and as submitted during hearing. Briefly stated. - Beneficial legislation should not be construed too rigidly as it was for the protection of certain class of persons. Mandhana Dyeing v. UOI - 2010 (251) E.L.T. 481 (Bom.) - Non-applicability of Section 123. - Goods involved are "manufacture of diamonds" and not "manufacturer of gold". - Reliance placed on "Shabbir Eshakal....
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....isclosing material particulars. (1) Delhi High Court's case in the case of Ashok K. Jain (supra) (2) Komal Jain v. UOI - 2014 (304) E.L.T. 675 (Del.) - Customs duty could be self assessed and paid under Section 124. SCN proposing confiscation. 7.8 Disclosure not selective or incomplete for not admitting any liability for second show cause notice. - Respondent themselves issued two SCNs and therefore it cannot be said that the first SCN could not be dealt with separately. - Reliance on Optigrab case by Revenue misplaced as in the said case application clubbing three cases was rejected as untenable. - Writ petition No. 4524 of 2015, dated 15-6-2015 in their case permitted filing of application for settlement restricted to SCN dated 27-1-2014 whereas permitting seeking adjudication of second SCN. - Although Settlement Commission has the jurisdiction and authority to allow re-export the applicants willing to give up their request for pe....
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....rly classified under 7113 19 30. Intention of legislation was to category-wise articles of jewellery comprising diamonds set in gold as article of gold jewellery and not vice versa. - Besides if applicants are seeking to contest the classification of the goods under seizure, the present application would get barred in terms of proviso to Section 127B(1). 7.13 In a short re-joinder dated 14-6-2016, on behalf of applicants, Revenue's contention were sought to be rebuffed by drawing reference to Hoganas India Ltd. Case's decision 2006 (199) E.L.T. 8 which laid down that the entire approach behind legislation was to unearth frauds and dishonesty. - Reference to Shabbir Eshakali Patanwala case was to show that since predominant part in the value terms is diamond, such jewellery is held as diamond jewellery and not gold jewellery. - As regards Revenue contention on issue of classification, it is reiterated that the goods in the instant case are classifiable under CTH 9803. Duty liability as calculated by them not contested by Revenue. Therefore, t....
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....d under CTH 7113 19 30 of First Schedule of the Customs Tariff 1975 as "Articles of jewellery of Gold set with Diamonds", these are "manufacture of gold" and therefore, squarely covered under Section 123(2) of the Customs Act, 1962 and therefore, as per 3rd proviso to Section 127B(1) of the Customs Act, 1962 such applications are barred from the purview of the Settlement Commission. (ii) In response, the applicants take the Bench through the legislative history of Section 123 which is reproduced herein below : S.178A of the Sea Customs Act : "178A. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and cosmetics and any other goods which the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every notification issued under sub-section (2) shall be laid before both Houses of Parliament, as soo....
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....upra) case, relevant portion of which are reproduced below :- "8.7 The proviso to these expressions in the Notifications also clarifies the reasoning behind exclusion of studded stones and pearls and its true meaning. The proviso stipulates that the per gram value of the semi-precious stone should be less than the per gram value of the gold. It indicates that the intention of the Government was to allow the import of gold and silver and other components in jewellery which do not have value more than per gram of the gold or silver. In the instant case also, the Cubic Zirconia studded on the jewellery bangles are having per gram value much less than the value of the gold and thus it fulfils the Government's intention. Conversely stating, the intention of Government is to allow import of gold and silver in any form, the value of which should predominantly consist of value of gold or silver as the duty is levied on weight basis and not gold studded with precious stones or pearls because in such as a scenario the predominant partner would be the precious stones or pearls and such jewellery is sold in the market as "Diamond jewellery" and not "gold jewellery". 8.2.4 Reven....
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....person smuggles 100 pcs. of same diamonds set in 10 gm. gold chain, could it be called 'manufacture of gold' and Section 123(2) applied as sought by Revenue. 8.2.6 Such an interpretation would lead to absurdity. It is, in the light of the above, common parlance test assumes relevancy and when applied to the instant case, the jewellery has to be treated as 'manufacture of diamonds' and out of the ambit of Section 123(2). In CCE, New Delhi v. Connaught Plaza Restaurant (P) Ltd. Case 2012 (286) E.L.T. 321 (S.C.), Hon'ble Apex Court held that the common parlance test was the extension of general principle of interpretation of statute for deciphering mind of law maker. It was an attempt to discover intention of legislature from language used by it, keeping in mind, that language is at best imperfect instrument for expression of actual human thoughts. Even assuming that the observation of Central Government in Patanwala's case (supra) were of the nature of obiter dicta, as contended by Revenue, and therefore, have no binding effect, these observations have immense persuasive value. 8.3 It has been further contended by Revenue that diamonds having been admittedly set i....
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....ds to which the section applies, would arise. Sub-section (2) merely specifies the class of goods to which the section would apply. Thus, class of goods specified in sub-section (2) are those to which the section itself would apply and if the conditions set out in sub-section (1) of Section 123 are satisfied with respect to such goods, the eventualities of shifting of burden on the owner or person in possession of such goods would arise. 3rd proviso to sub-section (1) of Section 127B incorporates by reference the applicability clause of Section 123. Incorporation by reference is a well-known legislative technique to avoid repetition of the same set of words in different sections of the same statute or sometimes even in different statutes. In essence, therefore, 3rd proviso to sub-section (1) of Section 127B incorporates the applicability clause of Section 123 for the ouster of the jurisdiction of the Settlement Commission. It has nothing to do with the eventuality of shifting of burden of proof. It is perhaps because of this reason that the Settlement Commission in the Special Bench judgement in case of Idris Y. Porbunderwala used the expression "invocability of the provisions o....
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....rds and data stores in electronic devices, the investigations is on and would be dealt separately in due course. Further, role of Rajesh Sheth and Manisha Sheth is also under investigation, who are yet to join the investigation. Action if any against them would be dealt separately in due course." 8.7.2 It is obvious that although both the two SCNs are the offshoot of a common investigation and talk about use of same modus operandi by the same set of persons, the Revenue themselves considered them separate proceedings. What is relevant to see is whether complete disclosures have been made in respect of proceedings relating to SCN of which the applicants are seeking settlement. It is seen that they have expressed their willingness to have their cases settled on payment of complete applicable duties/interest/fine/penalties on the values adopted by Revenue in the SCN subject to usual immunities. 8.7.3 The case laws cited by Revenue in support of their contention do not serve their cause as in the Optigrab case (supra) a common application for settlement filed for three show cause notices was rejected by the Hon'ble Court and in JSK Indl. case (supra), the applicants sou....
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....that the goods diamond studded gold jewellery are classifiable under 7113 19 30 as articles of gold jewellery and not vice versa and if the applicants challenge the same i.e. classification then their application would be barred in terms of proviso to Section 127B(1) ibid. 8.10.1 It would be appropriate to reproduce the relevant provisions of Section 127B(1) below for the ease of discussion. 127B(1) "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" 8.10.2 The applicants refer to CTH 9803 which covers all dutiable articles imported by a passenger in his baggage. The SCN also alleges that Sections 77 and 79 ibid were contravened conceding that the goods seized from Ms. Vihari Sheth at the airport as well from Jiten Sheth's shop premises were smuggled in as baggage. The applicants are not seeking any interpretation relating to classification under Customs Tariff Act, 1975 since the goods remain classified under 9803. 8.10.3 The Bench observes from the SCN that Revenue has not proposed any alternative classification of the goods in the SCN an....
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....ed acts to smuggle dutiable goods into the country without payment of appropriate duties, and to facilitate its sale. The Bench holds that the goods totally valued at Rs. 2.45 crores and Rs. 2.05,21,000/- respectively are liable for confiscation under the provisions invoked in the SCN and Ms. Vihari Sheth and Mr. Jiten Sheth liable to penalties under the provisions invoked in the SCN. 9. In view of the above discussion, the Bench settles the case of the applicants under Section 127C(5) of the Customs Act, 1962 in the following terms and conditions. ORDER 9.1 Goods seized on 30-7-2013 from the possession and person of Ms. Vihari Rajesh Sheth, totally valued at Rs. 2.45 crores are ordered to be confiscated. However, the Bench grants an option to her to redeem the same on payment of a fine of Rs. 37,50,000/- (Rupees thirty seven lakhs fifty thousand only) and duty of Rs. 88,32,250/- (calculated @ 36.05%) and grants immunity from fine in excess of Rs. 37,50,000/-. 9.2 Goods seized on 8-8-2013 from the showroom totally valued at Rs. 2,05,21,000/- are ordered to be confiscated. However, the Bench grants an option to redeem the same on payment of a fine of Rs. 3....