TaxTMI 
TaxTMI 
2008 (11) TMI 141
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....ayable by the petitioner on 7 packages and a receipt No. 33382 dated 15-5-2000 was issued to the petitioner. The petitioner allowed his co-passenger to put the packages on the trolley and take them out as he waited for one of the packages which had not come and after the petitioner came out the petitioner understood from his friends that the Directorate of Revenue Intelligence (D.R.I., for short) had taken the co-passenger to their office, and, as the inquiry would take a little lime, the petitioner returned to Singapore and after his return the petitioner filed an affidavit stating that the baggage/packages were brought by him and were legally imported as part of the baggage and were not smuggled and the petitioner had paid the duty. 3. There is no dispute that the petitioner was issued a show cause notice dated 31-10-2000 calling upon the petitioner to show cause as to why action in terms of Sections 111(d) and 112 of the Customs Act, 1962 should not be taken against him. In fact, the said show cause notice was issued to the petitioner, the said Shri N.B. Dichwalkar and others, and, as far as the petitioner is concerned the said show cause notice has now culminated in Order da....
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....nd the order records that the goods were seized at the entrance of the airport and both the findings to that effect are based on no evidence. It is the case of the petitioner that the said packages were booked by the petitioner and carried by the petitioner as his baggage to Goa and the documents on record clearly indicate that the goods contained in the said 7 baggages were declared by the petitioner and it is the case of the Customs that the goods sent out were put in Maruti van and thereafter the said van was intercepted and that the said Commission was misled by respondent nos. 1 and 3 to believe that the goods declared by the petitioner were not the goods which were seized and the finding that there is no co-relation between the goods declared and the duty paid is unreasonable and is not borne out by the averments made in the show cause notice and is contrary to the documents produced. As per the petitioner the flat T.V. is also known as Plasma Display Monitor and similarly the projectors are also shown in the baggage receipt and there fore the submission made by the Revenue that the goods were not from the possession of the petitioner is absolutely wrong and misleading. The c....
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....had remained inside the airport after sending the goods out along with the said Shri N.B. Dichwalkar and as an afterthought, after the goods were detained out side the airport, had declared part of the goods which were not in his possession and paid duty thereon, It is stated that the stand of the DRI in the show cause notice as well as before the Commission is consistent with the facts supported by the documentary evidence and the contention of the petitioner that he had shown the goods seized by DRI to the Customs for assessing the duties is incorrect and misleading. The DRI has reiterated that the goods declared by the petitioner were different from the goods seized by the DRI and the goods seized were from the possession of the said Shri N.B. Dichwalkar and not from the petitioner at a time when the petitioner was inside the airport. It is stated that as provided under Section 127B of the Act, it is mandatory that the importer has to file a bill of entry of the goods imported and in the present case the petitioner filed a baggage declaration for one JVC Flat T.V., one Sony Flat T.V. and two Sony Projectors and has claimed that he paid duty on the above imported goods but as reg....
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....age for the purpose of clearing it. It contemplates a declaration of its contents to the proper officer. Section 127B deals with application for settlement of cases and Section 127C deals with the procedure to be followed before rejecting or allowing the application. This Section requires the Commission to call for a report from the Commissioner of Customs having jurisdiction and on the basis of the materials contained in such report and the circumstances of the case or the complicity of the investigation involved therein to decide the same. Section 127D deals with the power of the Commission to order provisional attachment, etc. Section 127B with which we are concerned reads as follows :- Application for settlement of cases. - (1) Any importer, exporter or any other person (hereinafter in this Chapter referred to as the applicant) may, at any stage of a case relating to him, make an application 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....
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.... Sub-section (2) of Section 123 further provides that this Section shall apply to gold and manufactures thereof, watches and any other class of goods which the Central Government may by notification in the Official Gazette, specify. 9. A perusal of Section 127B of the Act, particularly the first and third provisos thereof shows that two of the requirements, which would be relevant for our purpose, which were required to be met for an application to be considered by the said Commission are (1) that the applicant had filed a bill of entry in respect of the goods imported and (2) the application ought to be in respect of the goods to which Section 123 did not apply. It appears from the impugned Order that the DRI had requested the officers of Customs to keep the petitioner detained and their efforts were in vain as the petitioner managed to escape. The Commission has accepted the contention of the DRI that the goods seized were the goods other than those which were declared and duty paid thereon vide receipt No. 33382. The Commission has also accepted that the show cause notice also related to the goods seized and it had no relevance to the goods to which duty was paid of Rs. 1,1....
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....t of the contents of one package and not the others which were seized by the DRI, outside the airport, from the possession of the said Shri N.B. Dichwalkar. 12. We are unimpressed with the submissions made on behalf of the petitioner. It can be seen from the Order dated 10-6-2005 of the Commissioner of Customs and Central Excise, which has now attained finality, that the said N.B. Dichwalkar, though found in possession of the goods seized did not claim the said goods nor did he categorically state that they belonged to or were imported by the petitioner. He has also been penalized under Section 112(a) of the Act for illegal import of goods. It also can be seen that the DRI had received information that two passengers, namely the petitioner and the said Shri N.B. Dichwalkar were arriving at Dabolim airport, Goa, from Singapore via Bombay and were bringing Plasma T.V. sets and also gold consisting of 7 packages and therefore their officers reached the airport and kept a discreet watch and noticed that the said Shri N.B. Dichwalkar came out of the airport with two trolleys loaded with 6 packages and met John Fernandes who directed the said N.B. Dichwalkar and the two trolleys to a ....
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.... his application had fulfilled the conditions of Section 127B of the Act. The learned Division Bench while considering the extent of jurisdiction of the Commission to consider the cases under Section 127B of the Act observed that: "with regard to the above contention it is the main contention of the learned Counsel Mr. Rana that the Settlement Commission has a limited jurisdiction as per Section 127B of the Customs Act, in the sense that only the cases of misclassification or such similar cases including the wilful misclassification wherein the notice under Section 28 of the Customs Act has been issued can be entertained by the Settlement Commission, and that the Settlement Commission has no jurisdiction in the other cases and it cannot even entertain the application for settlement. With regard to the above contention a perusal of Section 127B makes it abundantly clear that the Applicant must be an importer or exporter or any other person who can file an application at any stage of a case relating to him. The above wording make it clear that either the importer or the exporter or any person can approach the Settlement Commission at any stage. Emphasis is that the person need not....
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....icated hereinabove the Settlement Commission does not grant immunity as a matter of course. It has discretion to grant immunity in a given case. Even if it were to grant immunity, the Settlement Commission can always impose conditions while doing so. The Settlement Commission has power even to attach the properties of the Applicant to secure the interest of the Revenue during the pendency of the proceedings before him, which power even the adjudicating authority does not have. As rightly pointed out by the learned Counsel appearing for the private parties, the Settlement Commission has power to grant immunity with regard to all kinds of prosecution under the Customs Act and any other law including the Indian Penal Code, which obviously would necessitate the Applicant being involved in a serious fraud wherein he is likely to be prosecuted under the Indian Penal Code or any other penal law. If that be so, one cannot say that the Settlement Commission has jurisdiction only to deal with the bona fide case of misclassification or at the most wilful case of misclassification". "One cannot minimize the scope of jurisdiction of the Settlement Commission without any express provisions fo....
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.... 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 or otherwise of goods. These are the essential requirements for making an application under Section 127-B of the Customs Act, which are also clear from the wording of the very section as well as from the particulars to be given in the Form prescribed by the Department, as we have indicated herein above". 14. The case of V.C. Mohan v. The Commissioner of Customs (supra) is again clearly distinguishable in that case also an entry bill was filed and since the description and the value of the goods did not tally with the bill of entry, the consignment was seized and it is in that context that the learned Division Bench observed that the condition no. 1 of the proviso relating to the filing of the bill of entry was complied with and so also other conditions including the issue of show cause notice, the duty payable exceeded Rs. 2,00,000/- as well as the condition that the application was in respect of goods to which Section 123 of the Act did not apply. 15. Admittedly, in terms of Section 127C of the Act, the Comm....