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2022 (7) TMI 666

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....se, Mumbai under section 127C (5) of the Customs Act, 1962 ("the Act"). 2. Mr. Jetly stated that petitioner is challenging the impugned order on two grounds:- (a) that no show-cause-notice had been issued and therefore respondents could not have filed application before the Settlement Commission under section 138 of the Customs Act, 1962; and (b) Settlement Commission could not have interpreted classification of the goods under the Customs Tariff Act, 1975. 3. Before we go into the details, as regards the first point, in paragraph 2 of the petition, it is stated the challenge is to the extent that it classifies Motor-home imported by respondent No. 1 under Custom Tariff Heading (CTH) 87.02 as against 87.03 held by the revenue departme....

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.... vehicle) to be classified under CTH 87.03. In the midst of the ongoing investigation, respondent No. 2 filed an application on 08.07.2003 before the Settlement Commission, viz., respondent No. 1, claiming that the department had given oral show-cause-notice and written show-cause-notice was waived vide letter dated 04.07.2008. Respondent No. 2 had requested respondent No. 1 for settlement of the following issues:- (a) Confiscation of the vehicle under section 111 of the Act; (b) Immunity from fine order under section 125 of the Act; (c) Duty liable under section 125(2) of the Act; (d) Immunity from penalty under the Act and ; (e) Immunity from prosecution under the Act. Respondent No. 2 also prayed to settle the dispute pertaini....

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....e of show-cause-notice is a nonissue and we are going to restrict ourselves only on the issue of classification. 8. Sub-section (1) of section 127(b) of the Act reads as under:- "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 accep....

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....ion shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975) (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. (5) Any person, other than an applicant referred to in sub-section (1), may also make an application to the Settlement Commission in respect of a show cause notice issued to him in a case relating to the applicant which has been settled or is pending before the Settlement Commission and such notice is pending before an adjudicating authority, in such manner and subject to such conditions, as may be spec....

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....stoms Officer turned the matter on its head against petitioner. 11. It was department's case that the appropriate classification of the goods is under CTH 87.03 and not 87.02 as claimed by the importer and there was a huge difference of duty between classification under CTH 87.03 and CTH 87.02. 12. Petitioner has relied on certain brochure regarding the vehicle. In the petition, it is not stated that this brochure was submitted by respondent No. 2 or the manufacturer of the vehicle has stated that this brochure actually pertains to the vehicle that was in question. Even in the show-cause-notice, there is no reference to this brochure. 13. It is the case of respondent No. 2 that petitioner has, by admitting that the seating arrangemen....

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.... cc 8703.23 -- Of a cylinder capacity exceeding 1,500 cc but not exceeding 3,000 cc 8703.24 -- Of a cylinder capacity exceeding 3,000 cc -- Other Vehicles, with compression-ignition internal combustion piston engine (diesel or semi-diesel): 8703.31 -- Of a cylinder capacity not exceeding 1,500 cc 8703.32 -- Of a cylinder capacity exceeding 1,500 cc but not exceeding 2,500 cc 8703.33 -- Of a cylinder capacity exceeding 2,500 cc 8703.90 -- Other This heading covers motor vehicles of various types (Including amphibious motor vehicle) designed for the transport of person; it does not, however, cover the motor vehicles of heading 87.02. The vehicles of this heading may have any type of motor (internal combustion piston engine, el....