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2015 (8) TMI 1280 - Commission - CustomsConfiscation of goods and imposition of interest and penalty - Import of Polyester Knitted Fabric without payment of duty under two Advance Licences - Availed exemption in terms of Customs Notification No. 96/2009, dated 11-9-2009 - Duty free goods had been diverted to the domestic market though in both the licences it is specified that materials imported shall not be transferred even after the fulfilment of the stipulated export obligation and the same shall be utilized only for further export production. Held that - it is apparent that subsequent to the decision of the Special Bench of the Settlement Commission in the case of Idris Y. Porbunderwala 2005 (6) TMI 302 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE , various High Courts have unambiguously held that the goods to which Section 123 applies do not fall in the jurisdiction of Settlement Commission and also that the proper and complete compliance of the conditions laid down in the statute cannot be compromised or condoned in any manner. Therefore, the Bench holds that the cases relating to goods which are specified/notified under sub-section (2) of Section 123 of the Customs Act, 1962 are outside the purview of Settlement Commission. Accordingly, as the goods to which the instant case relates are notified under sub-section (2) of Section 123 of the Customs Act, 1962 and also so admitted by the applicants during the hearing on 24-7-2015, the Bench rejects the application for settlement filed by the appellant. - Settlement application rejected as non-jurisdictional
Issues Involved:
1. Liability of the imported goods for confiscation under Section 111(o) of the Customs Act. 2. Demand and recovery of duty foregone under Section 28(4) of the Customs Act. 3. Demand and recovery of interest on the duty amount under Section 28AA of the Customs Act. 4. Appropriation of the amount already deposited by the applicant. 5. Imposition of penalty under Section 114A of the Customs Act. 6. Imposition of penalty under Section 114AA of the Customs Act. 7. Eligibility of the applicant to approach the Settlement Commission under Section 127B of the Customs Act. Detailed Analysis: 1. Liability of the Imported Goods for Confiscation: The Show Cause Notice (SCN) alleged that the applicant imported Polyester Knitted Fabric without payment of duty under Advance Licenses, availing exemption under Customs Notification No. 96/2009. The goods were liable for confiscation under Section 111(o) of the Customs Act due to non-fulfillment of the conditions stipulated in the licenses, including the diversion of duty-free goods to the domestic market. 2. Demand and Recovery of Duty Foregone: The SCN demanded the recovery of Rs. 39,41,186/- as duty foregone under Section 28(4) of the Customs Act, asserting that the applicant cleared the goods based on false declarations, thus violating the conditions of the Advance License Scheme. 3. Demand and Recovery of Interest: The SCN also sought recovery of interest on the duty amount under Section 28AA of the Customs Act. The applicant admitted the liability of Rs. 8,61,297/- as interest on the duty foregone. 4. Appropriation of Amount Already Deposited: During the investigation, the applicant voluntarily deposited Rs. 20,00,000/-. Later, additional amounts were deposited, totaling Rs. 48,00,000/-. The jurisdictional Commissioner confirmed the total liability of Customs duty and interest as Rs. 51,19,357/-, leaving a differential amount of Rs. 3,19,357/- to be deposited. 5. Imposition of Penalty under Section 114A: The SCN proposed a penalty under Section 114A for collusion and willful misstatement, which rendered the imported goods liable to confiscation. The applicant sought immunity from penalty and prosecution, claiming full cooperation and true disclosure. 6. Imposition of Penalty under Section 114AA: A penalty under Section 114AA was proposed for knowingly and intentionally using documents containing false declarations. The applicant admitted the allegations but requested leniency in the imposition of penalties. 7. Eligibility to Approach the Settlement Commission: The eligibility of the applicant to approach the Settlement Commission under Section 127B was questioned. The SCN did not invoke Section 123 of the Customs Act, which pertains to goods notified for special treatment due to smuggling concerns. The applicant's advocate argued that the goods were not synthetic yarn or fabrics made of synthetic yarn and thus not barred from settlement. However, the Bench found that the goods were covered under Section 123, making the application ineligible for settlement. Conclusion: The Bench concluded that the goods in question were notified under Section 123 of the Customs Act, thus barring the application for settlement under Section 127B. The Bench disagreed with the Special Bench's decision in Idris Y. Porbunderwala, emphasizing that the statutory provisions clearly exclude goods notified under Section 123 from the Settlement Commission's purview. Consequently, the application for settlement was rejected.
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