2018 (5) TMI 451 - HC - Customs

Rejection of settlement application - rejection on the ground that proceedings initiated under the show cause do not propose to assess, levy and collect any differential duty and therefore, it is not a case as defined u/s 127-A(b) of the CA 1962 - Held that - In the instant case, admittedly, a SCN has been issued to the petitioner dated 18.03.2004. In the SCN, there is an allegation that the petitioner/importer have grossly undervalued the goods imported and the goods were allowed to be provisionally released on payment of the full duty as determined by the Department - SCN proposes to reject the value declared by the petitioner and fix the actual value of the goods and also confiscate the same in terms of Section 111(d) & (m) of the Act and proposes to impose penalty against the importers. The petitioner is entitled to maintain the application before the Commission as there is a SCN for confiscation and it would fall within the definition of caseas defined u/s 127-A(b) of the Act. The matter is remanded to the Settlement Commission for fresh consideration - petition allowed.

Summary

Issues:
Challenge to order of Customs & Central Excise Settlement Commission under Customs Act, 1962 - Admissibility of settlement application - Interpretation of definition of "case" under Section 127-A(b) of the Act - Entitlement to maintain application before Settlement Commission.

Analysis:
The petitioner filed a writ petition challenging the order of the Customs & Central Excise Settlement Commission dated 23.07.2004, which held the application for settlement inadmissible under Section 127-C(1) of the Customs Act, 1962. The Settlement Commission found that the proceedings initiated under the show cause notice did not propose to assess, levy, and collect any differential duty, thus not falling under the definition of "case" as per Section 127-A(b) of the Act. However, the Court examined the definition of "case" under Section 127-A(b), which includes any proceeding for the levy, assessment, and collection of customs duty pending before an adjudicating authority at the time of application submission. It was noted that the show cause notice issued to the petitioner alleged gross undervaluation of imported goods, proposing confiscation, penalty imposition, and rejection of declared value. Therefore, the Court held that the petitioner was entitled to maintain the application before the Commission as the show cause notice fell within the definition of "case" under Section 127-A(b) of the Act.

The Court referred to a Division Bench judgment in V.C.Mohan v. Commissioner of Customs, where it was established that disputes involving prima facie smuggling should not be excluded from the purview of Section 127-B based on the absence of levy, assessment, and collection of customs duty. The judgment highlighted that in cases of confiscated goods that are not prohibited, importers are given the option to pay redemption fines, necessitating assessment, levy, and collection of duty and charges. The Court rejected the contention that disputes not directly involving duty assessment should be excluded from settlement proceedings. It further cited judgments from the Bombay High Court supporting a broader interpretation of the scope of settlement applications, emphasizing the importance of assessing duties and charges for confiscated goods.

Consequently, the Court allowed the writ petition, setting aside the impugned order and remanding the matter to the Settlement Commission for fresh consideration. The Commission was directed to accept the petitioner's application and proceed in accordance with the law. No costs were awarded, and the connected miscellaneous petition was closed, concluding the judgment.