2014 (3) TMI 418 - HC - Customs

Validity of order passed by the Settlement Commission (Commission) under Section 127B of the Customs Act,1962 - Failure of the petitioner to make full and true disclosure of duty liability under Section 127B(1) of the Act - Held that - impugned order of the Commission dated 23 October 2012 is a well reasoned order. The petitioners in this case is in receipt of show cause notice dated 28 March 2012 seeking to recover duties of Customs not only in respect of the consignment which was seized but also six earlier consignments. The petitioners in their application sought to settle only the dispute with regard to the seized consignment. Before the Commission the revenue had filed a report opposing the settlement for failure to disclose fully and truly all facts on the part of the petitioners particularly, in respect of the six earlier consignments. Therefore, the petitioners were on notice about the objection of the revenue and they could have led evidence in support yet the petitioner chose to contest the Commissioner s report only on the ground that the statement made by the coapplicant i.e. petitioner No.2 had been retracted and there is nothing on record to indicate that the petitioner had imported glass chatons on six earlier occasions. The order of the Settlement Commission is based on appreciation of facts which were placed before it and its conclusion that the petitioner had not made a true and full disclosure in their settlement application cannot be said to be perverse and/or arbitrary warranting an interference by this Court - A course of settlement under the Act is available only where the petitioners of their own want to make clean breast of their affairs and not where the petitioner wants to resist the notices by challenging several statements relied upon by the revenue in support of its case. In such a case the petitioner would be well advised to seek remedy under the Act in the adjudication process - Decided against assessee.

Summary

Issues:
Challenge to Settlement Commission's order under Article 226 of the Constitution regarding duty liability disclosure.

Analysis:
1. Disclosure of Duty Liability: The petitioners challenged the Settlement Commission's order dated 23 October 2012, which dismissed their application due to the failure to disclose the duty liability fully and truly under Section 127B(1) of the Customs Act, 1962. The petitioners admitted additional duty liability but denied duty payment for earlier consignments containing glass chatons. The jurisdictional Commissioner opposed the settlement application, alleging lack of full disclosure of duty liability, specifically regarding the earlier consignments. The Commission found the petitioners' application lacking in full disclosure, leading to its dismissal.

2. Evidence and Statements: The petitioners contended that they obtained documents post-hearing that could clarify the nature of goods imported in earlier consignments. However, the Commission's order was supported by the admission of one petitioner regarding the import of glass chatons without declaration. The Commission emphasized that settlement proceedings require a party to come clean and make a full disclosure, not to adjudicate or challenge evidence presented by the other side.

3. Settlement vs. Adjudication: The Court upheld the Commission's order, noting that settlement proceedings are distinct from adjudication. The petitioners sought to settle only the seized consignment dispute, while the revenue objected to the lack of full disclosure for earlier consignments. The Court highlighted that settlement requires utmost good faith and is not an alternative to adjudication. The Commission's decision was based on the facts before it, and the petitioners' failure to demonstrate true and full disclosure warranted no interference by the Court.

4. Additional Hearing Request: The Court dismissed the petitioners' plea for setting aside the order, emphasizing that seeking further clarification post-hearing without substantial evidence or documents does not align with settlement procedures. The Court differentiated between settlement proceedings and adjudication, stating that challenging statements relied upon by the revenue is more suited for the adjudication process. The petitioners were advised to pursue remedies under the Act through adjudication if they wished to contest the revenue's claims.

In conclusion, the Court upheld the Settlement Commission's decision, emphasizing the importance of full disclosure in settlement proceedings and distinguishing them from adjudication processes. The petitioners' failure to demonstrate a genuine effort to come clean about their duty liability led to the dismissal of their settlement application. The Court found no grounds to interfere with the Commission's order and dismissed the petition with no costs.