2018 (1) TMI 66 - Commission - Customs

Misdeclaration of value and quantity of goods - Glass chattons - subsection (1) of Section 127B, sub-section (1) of Section 127(C) and sub-section (2) of Section 127(F) - scope of case - Held that - it is clear that an assessee can make an application for Settlement before adjudication. On receipt of such an application the Settlement Commission is required to issue a notice within a period of seven days from the date of receipt of the application asking the applicant to explain as to why the application should be allowed to be proceeded with and after taking into consideration the explanation provided, the Settlement Commission shall within a period of 14 days from the date of receipt of notice allow the application to be proceeded with or reject, as the case may be. Once an application is allowed to be proceeded with under Section 127C, the exclusive jurisdiction of Settlement Commission to exercise the powers and perform the functions of Customs or Central Excise officer as the case may be starts as per sub-section (2) of Section 127(F). In the instant case, the Settlement Application was filed on 21-3-2017 and was allowed to be proceeded with on 24-3-2017. The exclusive jurisdiction of Settlement Commission as per sub-section (2) of Section 127(F) starts from the date on which the application is allowed to be proceeded with. In the instant case, the Settlement Application received on 21-3-2017 was allowed to be proceeded with on 24-3-2017. Before the commencement of the exclusive jurisdiction of Settlement Commission, the case had been adjudicated on 10-3-2017. The present applications have been made is no longer pending adjudication and does not fall within the meaning of case as defined in clause (b) of Section 127 of Customs Act, 1962. Application not maintainable.

Issues Involved:
1. Misdeclaration of imported goods.
2. Re-determination of assessable value.
3. Confiscation of goods.
4. Demand and recovery of customs duty.
5. Imposition of interest on delayed payment.
6. Imposition of penalties.
7. Maintainability of the settlement application.

Detailed Analysis:

1. Misdeclaration of Imported Goods:
The applicant was accused of misdeclaring the value, quantity, and description of goods imported under Bill of Entry No. 5077360, dated 28-4-2016. The goods declared as Glass Beads were found to be Glass Chattons, and the declared quantities were significantly lower than the actual quantities discovered upon examination.

2. Re-determination of Assessable Value:
The value of the imported goods was re-determined based on NIDB data and market enquiry. The declared value of ?14,27,903 was rejected and re-determined as ?1,58,91,065 under Section 14(1) of the Customs Act, 1962, read with Rule 7 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007.

3. Confiscation of Goods:
The goods, quantified and revalued, were proposed for confiscation under Section 111(l) & (m) of the Customs Act, 1962. The applicant was given an option to redeem the goods on payment of a redemption fine of ?30,00,000.

4. Demand and Recovery of Customs Duty:
Customs duty amounting to ?46,78,488 was demanded and recovered under Section 28 of the Customs Act, 1962. The applicant had already deposited this amount and sought a refund of ?10,29,629, arguing that the correct duty should have been ?36,49,220.

5. Imposition of Interest on Delayed Payment:
Interest amounting to ?53,026 at 15% on the delayed payment of customs duty was demanded under Section 28AA of the Customs Act, 1962.

6. Imposition of Penalties:
Penalties were proposed under Sections 112(a) and 114A of the Customs Act, 1962. Additionally, a penalty of ?25,000 was imposed on Ms. Shweta Agarwal, the proprietor of the applicant firm, under Section 114AA of the Customs Act, 1962.

7. Maintainability of the Settlement Application:
The primary issue was whether the settlement application was maintainable since the case had already been adjudicated. The application was filed on 21-3-2017, after the adjudication order was passed on 10-3-2017 and dispatched on 14-3-2017. The applicant argued that they were unaware of the adjudication due to a family emergency and referenced the case of M/s. Emjay Creation, where it was held that an order is not considered passed until it is pronounced or published.

Judgment:
The Settlement Commission observed that the exclusive jurisdiction of the Settlement Commission starts from the date the application is allowed to be proceeded with. In this case, the application was allowed on 24-3-2017, but the case had already been adjudicated on 10-3-2017. Citing the Delhi High Court case of Qualimax Electronics Pvt Ltd. v. Union of India, it was held that the adjudication order signals the end of the case pending before the adjudicating authority, and the date of dispatch is relevant for determining the completion of adjudication.

Thus, the Settlement Commission concluded that the case was no longer pending adjudication and did not fall within the meaning of 'case' as defined in Section 127 of the Customs Act, 1962. Consequently, the settlement applications were deemed not maintainable and were rejected.

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