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TMI Blog2001 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, inter alia, made the following submissions :- (1) It was submitted to the Hon. High Court that the Commissioner is judicial or quasi judicial authority (the term used in the writ petition is Commissioner) and, therefore, is enjoined in law to proceed in a judicious manner by adopting an objective and judicious approach. The Commission is required in law to act on the basis of evidence and material on record. The Commission had noted that there was no evidence including in the form of export declarations to show that the value declared on the said goods covered by the remaining 7 Bills of entry was not correct. The Commission is a fact finding body and, therefore, ought to have decided the case on the basis of the facts on record and material disclosed by these Respondents which was placed on record before the Commission. In the absence of any evidence or material on record, the determination of the Additional Duty liability of Rs. 23,01,077/- is unsupported by any evidence or material on record and hence such a determination of the duty liability is liable to be set aside. (2) The Commission erred in disregarding the facts of the case before the Commission and relyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23,01,077/- the Commission has, however, calculated the element of freight and insurance on notional basis although the actual amount of freight and insurance is available on record and has in fact been accepted for the purpose of calculating the admitted duty liability. Accordingly, the determination of the duty liability of Rs. 23,01,077/- is ex-facie erroneous and incorrect and improper in law. (9) The Petitioner had also contended that there shall be writ, restraining the order passed by the Commission to be implemented and the Hon. Court to consider legality thereof and to quash and set aside the impugned order dated 2-8-2001. 4. The Hon. High Court vide their order dated 10-9-2001 has passed the following order :- Mr. Nankani, learned Counsel appearing for the petitioner, seeks leave to withdraw this petition with liberty to file an application for rectification before the Settlement Commissioner. Leave granted. Petition is allowed to be withdrawn with liberty as prayed for. The Settlement Commissioner is directed to consider the rectification application, in accordance with law, and pass appropriate orders within a period of eight weeks from the date of filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a final order was also passed on 2-8-2001. The Applicant moved a Writ Petition No. 2202 of 2001 in the Bombay High Court challenging the said final order of the Commission. As per the Order dated 10th September 2001 the Hon. High Court had permitted the Applicant to withdraw his petition with liberty to file an application for rectification before the Settlement Commission which, inter alia, reads as follows :- The Settlement Commission is directed to consider the rectification application, in accordance with law, ................. 5.3.1 In the said Order, it was also stated that All contentions of the parties are left open. 5.3.2 In this view of the matter, miscellaneous application had been filed by M/s. Manhar Audiotronics (P) Ltd. before the Hon. Settlement Commission seeking to modify the Commission s final order dated 2-8-2001 by accepting payment made by the Applicant aggregating to Rs. 7,66,827/- towards full and final settlement of the duty liability of the Applicant and granting waiver of penalty of Rs. 1,00,000/- in addition to the immunity from fine, interest and prosecution already granted to the Applicant. 5.3.3 The ld. Advocate also laid emphasis on con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of Customs, New Delhi (2) 1992 (59) E.L.T. 139 (Tribunal) Before the CEGAT, Special Bench A New Delhi, S/Shri Harish Chander, Vice President and P.K. Kapoor, Member (T) - Trimurti Enterprises v. Collector of Customs. 5.3.9 The Commission asked the ld. Advocate the provision in the law allowing him to file an application for rectification of the Order passed by this Commission. The ld. Advocate submitted that the rectification application had been filed and the same had to be considered for disposal by the Commission under the direction of the Hon. High Court. 5.3.10 The ld. Advocate at the end submitted that he had made the disclosure correctly and pleaded before the Commission for granting the benefit of Rule 5(3) and other benefits as mentioned in the miscellaneous application of the Applicant. 5.4 The Revenue was represented by Shri K.M. Mondal, Consultant. 5.4.1 The ld. Consultant at the outset submitted that the Applicant had submitted his application for rectification of the Commission s final order dated 2-8-2001. Rectification means to correct any mistake . It would therefore be necessary for the Applicant to explain what was the mistake comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved at. Here, the evidences adduced by the Revenue was the export declarations obtained from abroad. Only some export declarations could be obtained as explained before passing of the final order. As records older than a period of two years were not maintained, the Revenue could not get any export declarations in 7 out of 10 invoices. In order to determine the value in respect of the goods covered under 7 Bills of Entries, the Revenue had taken the prices admitted by the Applicant itself. The Revenue had also taken the basis of export declaration already in possession. 5.4.6 The ld. Consultant argued that the ld. Advocate of the Applicant had accepted the goods imported and cleared 10 days prior were of various types showed that the goods were different from each other and hence the claim of the benefit under Rule 5(3) was not tenable. 5.4.7 To another query by the Commission to the Revenue regarding the extent of benefits under Rule 5(3) not given to the Applicant in relation to the disputed goods though the same was extended earlier, the Revenue stated that the facts of the case differ from case to case and in such a scenario, the methodology was adopted according to the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 129B relating to Customs, Excise and Gold (Control) Appellate Tribunal, as appearing in Chapter XV of the Customs Act, 1962, which reads as below : - The Appellate Tribunal may, at any time within four years from the date of the order passed by it under sub-Section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Customs or the other party to the appeal; Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 5.5.3 The ld. Consultant of the Revenue has also concurred with the aforesaid submission of the ld. Advocate and has submitted that the Commission has no power to review its own order since the Hon. High Court has ordered that The Settlement Commissioner is directed to consider the rectification application, in accordance with law......... . The term Commissioner appears to be a typographical error for the term Commission . These direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or settlement had been made by the applicant under that section covered such proceeding also. Provided that no proceeding shall be reopened by the Settlement Commission under this section after the expiry of five years from the date of application under sub-Section (1) of Section 127B. (emphasis added). 6.2.2.1 From the aforesaid statutory provision, it is apparent that the reopening of the completed proceedings is not with reference to rectification of any mistake but for proper disposal of a case pending before the Settlement Commission. The time limit for reopening any completed proceeding is also specified as five years from the date of such application made under sub-Section 1 of Section 127B. 6.2.2.2 It may be mentioned that there is no reference to the date of passing of the order of Settlement but only to the date of application under sub-Section 1 of Section 127B. 6.2.3 The said provision may also have to be read with the back drop of establishing a Settlement Commission to resolve expeditiously at shortest possible time spell vis-a-vis the lengthy appellate procedure. In this connection, it may be appropriate to refer to provisions of Section 127J of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Settlement Commission is no longer obscure. A deep exploration of the background of the constitution of the Commission had been already undertaken by the Supreme Court in its decision in Shreeram v. Settlement Commission 118 ITR 169 (sic). It is not the policy of the law or the direction of legislation to lean in favour of a social, criminal, particularly of the white collar brand. This, notwithstanding the scheme of the Settlement Commission, escaped judicial frowns for a major reason : a speedier culmination of a tax dispute may, in a sense, serve the cause of the nation needing huge resources for its vast welfare schemes. The Commission is to be manned by persons of impeccable integrity and unquestioned competence. Great expertise and greater responsibility in the decision-making process are integral parts of its independent functioning. It has to free itself from extraneous considerations or alien influences. It is, therefore, not reasonable for an assessee to expect the Settlement Commission to function as if it were a mere rubber stamp or yet another limb of the ordinary executive mechanism of tax-gatherers. Neither the Revenue nor the taxpayer can, therefore, play trua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the said investigation, value for purpose of assessment was arrived at on the basis of contemporaneous value of imported goods. The Tribunal has observed that The supply of goods from Hong Kong is no justification for declaring the goods of Chinese Origin. It has adequately been established that the country of origin of the goods had been intentionally misdeclared. Therefore, their confiscation and imposition of penalty on the importer have to be upheld as legally correct and justified in the facts of the case. The Tribunal in the said case has also referred to the nature of goods and observed that With regard to enhancement of value in respect of items for which contemporary imports were available, we are in agreement with the Revenue that the declared value was very low, the goods have been imported without declaring their full details about their brand name, quality, etc. even though from the sticker and other markings they could be identified as of Japanese and Korean origin. Therefore, rejection of invoice value and the assessment of the goods at the value of comparable goods was justified. The valuation adopted for ICs based on quotation was also justified. From t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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