9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2005 (6) TMI 302 - Commission - CustomsSettlement Commission - Whether the bar provided in the above proviso will apply to all cases relating to the goods, which are specified in sub-section (2) of Section 123 of the Act or would apply only to cases where a question relating to burden of proof becomes relevant, i.e., when the goods specified in sub-section (2) of Section 123 are seized under the Act in the reasonable belief that they are smuggled goods - HELD THAT - The fundamental issue which needs to be examined and decided is the interpretation of the expression apply which appears in the third proviso to sub-section (1) of Section 127B and also in Section 123 of the Act. The point which needs consideration is whether the said expression apply would also include the applicability or application of the conditions laid down in the provisions of Section 123 thereby implying that the invocability of these conditions is to be gone into, examined and adjudged before concluding whether the mischief of third proviso to sub-section (1) of Section 127B of the Act would come into play. The Hon ble Supreme Court has held in British Airways PLC v. UOI 2001 (11) TMI 81 - SUPREME COURT , that while interpreting a statute, the court should try to sustain it and give such meaning to the provisions which advance the object sought to be achieved by the enactment. A court cannot approach the enactment with a view to dig holes or to search for defects of drafting which makes its working impossible. It is a cardinal principle of construction of a statute that efforts should be made in construing the different provisions so that each provision will have its play and in the event of any conflict a harmonious construction should be given. The well known principle of harmonious constructions is that effect shall be given to all the provisions and further any provision of the statute should be construed with reference to the other provisions so as to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the court to make such construction of a statute, which shall suppress the mischief and advance the remedy. While interpreting a statute the courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation . Again, the Hon ble Karnataka High Court have held in Tata Consultancy Services v. UOI 2001 (4) TMI 1 - KARNATAKA HIGH COURT , that where the language of a statute in its ordinary meaning leads to a manifest anomaly or contradiction, the Court is entitled to put upon it a construction which modifies the meaning of the words used in the Statute. Thus, we conclude that invocability of the provisions of Section 123 is an essential ingredient to determine the applicability of the said section to the seized goods so as to decide whether the mischief of the third proviso to sub-section (1) of Section 127B of the Act would come into play. Order per K.P. Sridhara Raman, Chairman - I agree with the above conclusions of my ld. Colleagues. I would also like to record that the initial divergence in view is basically on account of the language used in Sections 123 and 127B of the Customs Act, 1962. The third proviso to sub-section (1) of Section 127B lays down that .... no application under this sub-section shall be made in relation to goods to which Section 123 applies... Section 123 dealing with burden of proof in certain cases also mentions under its sub-section (2) that This Section shall apply to gold, and manufactures thereof, watches, and any other class of goods, the Central Government may by notification in the Official Gazette specified''. Thus, going by the phraseology of the two provisions, using the same word apply , prima facie, Section 123 appeared to apply to the goods mentioned in sub-section (2) thereof, though for invoking its provision to shift burden of proof, the conditions cited therein have to be satisfied, and, therefore, appeared to attract the disqualification provided for under the third proviso to sub-section (1) of Section 127B. Accordingly, the phrase in the aforesaid third proviso to Section 127B(1) that ........ no applications under this sub-section shall be made in relation to goods to which Section 123 applies........ requires to be deemed as barring goods to which the provisions of Section 123 are invocable/invoked and the phrase This section shall apply to........ in sub-section (2) of Section 123 should be taken only as referring to the list of goods covered by Section 123, whose provisions can be invoked in respect of such goods subject to the satisfaction of the other conditions laid down in sub-section (1) thereof. Hence, as already stated, I agree with the above order.
Issues Involved:
1. Whether applications are barred in relation to goods listed or notified under sub-section (2) of Section 123 of the Customs Act. 2. Whether applications are barred when the goods are seized on reasonable belief that they are smuggled under sub-section (1) of Section 123. 3. Whether the bar applies to goods cleared under a Bill of Entry but subsequently seized. 4. Whether the bar applies only when Section 123 is invoked in the Show Cause Notice. Detailed Analysis: 1. Bar on Applications for Listed or Notified Goods: - The applications per se are not barred in relation to goods listed or notified under sub-section (2) of Section 123 of the Customs Act. The Special Bench concluded that the mere listing or notification of goods under Section 123(2) does not automatically bar applications for settlement. The invocability of Section 123 is a key determinant. 2. Bar on Applications for Goods Seized on Reasonable Belief of Smuggling: - The applications may not get barred merely because the goods are seized on reasonable belief that they are smuggled goods under sub-section (1) of Section 123. The Commission can determine whether there was a justifiable ground for reasonable belief and whether the provisions of Section 123 are rightly invoked in the Show Cause Notice. This means that the Commission has the authority to independently assess the applicability of Section 123 based on the facts and circumstances of the case. 3. Bar on Applications for Goods Cleared Under a Bill of Entry but Subsequently Seized: - The bar laid down in the third proviso to sub-section (1) of Section 127B of the Act could come into play for specified goods cleared under a Bill of Entry but subsequently seized under the Act on the reasonable belief that they are smuggled goods. This is applicable if the Revenue holds that the goods do not tally with the particulars contained in the Bill of Entry. Thus, even if goods are cleared through proper channels, subsequent seizure based on reasonable belief of smuggling can invoke the bar. 4. Bar on Applications When Section 123 is Invoked in the Show Cause Notice: - Applications in respect of such goods will attract the bar regardless of whether or not Section 123 of the Act has been expressly invoked in the Show Cause Notice, as long as the ingredients required for the application of the said Section are present. The conditions necessary for the invocation of Section 123 are inherent in the Section itself, making its explicit mention in the Show Cause Notice irrelevant. This means that the applicability of Section 123 is based on the presence of its conditions rather than its explicit invocation in legal documents. Conclusion: The Special Bench determined that the invocability of Section 123 is essential to decide whether the bar under the third proviso to sub-section (1) of Section 127B applies. The Commission must assess whether the conditions for Section 123 are met, regardless of whether the goods are listed under Section 123(2) or whether Section 123 is mentioned in the Show Cause Notice. The Additional Bench, Mumbai, is to dispose of the case of the applicant in light of these decisions. The interpretation of the term "apply" in Section 123 and Section 127B was crucial, leading to the conclusion that the bar applies only if the conditions for invoking Section 123 are satisfied.
|
