TaxTMI 
TaxTMI 
2020 (2) TMI 701
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....ew Delhi, to respondent Nos.2 to 11 herein. (ii) Given the limited scope of controversy in the present writ petition, it is not necessary to enter into detail in the facts of the case, suffice it is to state at about 9:15 p.m. on 09.04.2016, Officers of the DRI intercepted an Innova vehicle, one Ford Figo car and a truck, which arrived at a godown located in Darshan Vihar, Burari, Delhi, and on searching the said vehicles, 300 cartons of cigarettes, with 60 boxes in each carton were found concealed behind Aluminium scrap. The goods were found to be of Indonesian origin. The persons in the aforesaid vehicles were unable to produce any document/evidence of licit import of the aforesaid cigarettes. Under the reasonable pleas that the cigarettes have been smuggled to India, they were seized. Subsequently, another container, at ICD Ludhiana, imported by respondent No.2, was also seized, in which imported cigarettes were found concealed. (iii) Mr. Neeraj Aggarwal, Mr. Tarun Aggarwal, Mr. Sanjiv Aggarwal, Mr.Murarilal Girdharilal Sharma and Mr. Sanjay Lal Choudhary and Mr.Bhushan Bansal who were involved in the aforesaid imports filed W.P. No.12517/2016 before the High C....
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....ing of aforesaid settlement applications by respondent Nos.2 to 11, cigarettes stood notified under Section 123, by the aforesaid notification. (x) Section 127B of the Customs Act, 1962 provides thus: "127B. Application for settlement of cases.- (1) Any importer, exporter or any other person (hereinafter referred to as the applicant in this Chapter) may, in respect of a case, relating to him make an application, before adjudication to the Settlement Commission to have the case settled, in such form and in such manner as may be specified by rules, and containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification, under-valuation or inapplicability of exemption notification [or otherwise] and such application shall be disposed of in the manner hereinafter provided: Provided that no such application shall be ma....
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....e findings of the Settlement Commission read as under: "(v) The Bench finds that DRI and jurisdictional Commissioner has contested that Cigarettes comes within the ambit of goods on which Section 123 applies and on the date of filing application under Section 127B of the Customs Act, 1962, cigarettes were notified goods under Section 123 of Customs Act, 1962, vide Notification No 103/2016-Customs (NT) dated 25.7.2016, and hence the applicant was not allowed to apply for Settlement. The Bench finds that all the Bills of entry no 4785466 dated 04.04.2016, 4308262 dated 19.02.2016 and 4410560 dated 27.02.2016 were filed before 25.7.2016, the date on which the cigarettes were notified under Section 123 of the Customs Act, 1962, and the Bench does not agree with the contention of the Revenue that the applicant cannot apply for Settlement. The Bench refers to the case law in case of DGFT V/s Kanak Exports [2015 (326) ELT 26(SC) wherein Para 108 of the judgement states that Notification cannot be given retrospective effect." (xii) Having thus the applications filed before us, the impugned final order, of the Settlement Commission proceed to settle the case arising out of....
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...., it appears that looking to the provisions of Section 127B especially, third proviso thereof, no application could have been made by the respondent in relation to the goods to which Section 123 of the Customs Act, 1962 applies. In the facts of the present case, show cause notice was issued to this respondent on 7th April, 2017 (Annexure P-11 to the memo of this writ petition). The goods involved in this case is cigarettes which is a notified item. The Central Government notification is dated 25th July, 2016 with Notification No.103/2016 - Customs(NT). (b) Having heard the learned counsel for respondents and applied our mind to the record, we are unable to extend to any of the submissions advanced by Mr. Saurabh Kapoor, Advocate on behalf of respondents and entirely concur with Mr. Aditya Singla, Advocate in his submission that the Settlement Commission had no jurisdiction to entertain the respondents' applications. (c) We find that two preliminary objections advanced by Mr. Saurabh Kapoor, Advocate on behalf of the respondents to be totally bereft of substance. The show cause notices, in the present case were issued by the DRI. Seizure of the goods had also been ....
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....ition "make", contained in the Collins English Dictionary has meaning "to cause to exist.. to do in form of law; to perform with due formalities; to execute in legal form; .." (e) The proscription contained in third provision to Section 127B of the Customs Act, 1962 clearly attaches at the time of making of the application before the Settlement Commission, and not at any prior or later period of time including the date of the import of the goods. Applications, in respect of items which are notified under Section 123 of the Act on the date when the applications are made, are statutorily incompetent, by virtue of the aforesaid third proviso to Section 127B of the Customs Act. (f) Thus, in view of these facts, once the goods in question are covered under Section 123, in view of the aforesaid notification, no application could have been preferred by the respondents under Section 127B of the Customs Act, 1962. The first application was preferred on 16.08.2017, the second was preferred on 11.12.2017 and the third application was preferred on 12.12.2017 which are subsequent to the aforesaid notification dated 25th July, 2016. Thus, by no stretch of imagination it can be ....