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TMI Blog2002 (7) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... h Kumar have filed separate Applications for settlement of their case relating to Bill of Entry No. 203904, dated 27-11-1998, 204772, dated 23-12-1998 and 209559, dated 7-5-1999 and seizure of a consignment from two trucks along with other material belonging to the second applicant and the show cause notice (SCN) No. 708/58/OSD/2001-I, dated 25-1-2002 under proviso to sub-section (2) of Section 110 of the Customs Act, 1962 (hereinafter referred to as the Act) for extension of time for issue of SCN by another six months. The date of the seizure shown in the application is 7-8-2001 and the additional amount accepted as is Rs. 4,94,094/- as against the total duty liability of Rs. 19,79,935/-. It is stated that duty amounting to Rs. 14,85,841/- had been deposited in respect of the goods in question at the time of clearance. These applications have been registered in the Commission as SC(C) No. 214 to 223/2002, dated 14-2-2002. 2. The brief facts of the case are that on receipt of an information regarding storage of unaccounted metal scraps of foreign origin in SIL godown in Sundervan of Vasant Kunj and at Ganga Nursery godown, Mehrauli, Vasant Kunj, New Delhi, the Jurisdictional Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to why the time-limit for issue of SCN be not extended for a further period of 6 months from 6-2-2002 to 6-8-2002 as per sub-section (2) of Section 110 of the Act. 5. The Commissioner of Customs, ICD, Tughlakabad (hereinafter referred to as the Commissioner) submitted a report on 22-3-2002 under sub-section (1) of Section 127C of the Act. The DRI also submitted a report dated 26-3-2002. In both these reports, the Commissioner and the DRI strongly objected to the admission of the application. 6. The second applicant submitted a letter dated 25-3-2002 informing that a Writ Petition bearing No. 5941/2001 had been filed by them for release of goods seized illegally and the same has been withdrawn on 19-3-2002 in view of application for settlement of the case. The case was heard for admission on 28th March, 2002. 7. The Advocate appearing on behalf of the applicant explained the case and stated that they were eligible to file the application as period of 180 days had expired from the date of the seizure and, therefore, the prohibition under sub-section (2) of Section 127B was no longer applicable in their case. The learned Advocate was querried by the Bench regarding the status a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s comments on the amended application and objecting to the admission thereof. 10. The applications were heard for admission on 25th June, 2002 along with other set of applications filed by the first applicant and 8 others. The learned Advocate appearing on behalf of the applicant submitted the brief facts of the case as mentioned in their application and stressed that there is no matter relating to levy, assessment and collection of Customs Duty pending before any Court in this particular case and that the applicant No. 1 has accepted to pay the entire amount of duty. The Advocate submitted before the Bench that they satisfy all the eligibility conditions of Section 127B of the Act. It is submitted that the applicant is permitted to approach the Commission after completion of 180 days from the date of the seizure in terms of sub-section (2) of Section 127B. Reliance was placed on the order of this Bench in the case of M/s. Chawla Enterprises - 2002 (139) E.L.T. page 464 para 2. 10.1 It is submitted by Revenue that in the present applications, there is nothing to show that a Bill of Entry has been filed in respect of the goods seized on 7-8-2001 and accordingly the applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry or shipping bill) a show cause notice has been issued to him by the proper officer; (Emphasis supplied) (b) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees : Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending in the Appellate Tribunal or any Court : Provided also that no application under this sub-section shall be made in relation to goods to which Section 123 applies or to goods in relation to which any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) has been committed : Provided also that no application under this sub-section shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975). (2) Where any dutiable goods, books of account, other documents or any sale proceeds of the goods have been seized under Section 110, the applicant shall not be entitled to make an application under sub-section (1) before the expiry of one hundred and eighty days from the date of the seizure. (3) Every application made under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing. 12. Revenue s main objections against the admission of these applications are three folds - (i) The goods covered by the present applications were seized from two trucks and from a godown on 7-8-2001 and there is no material to link them with the three Bills of Entry dated 27-11-1998, 23-12-1998 and 7-5-1999 referred to by the applicant. Further there is no material on record to show that the seized goods were imported by the applicant. In view of the above, it is submitted that the applications do not satisfy Clause (a) of the first proviso to sub-section (1) of Section 127B. (ii) The present case is a case of non-declaration and concealment of non-declared goods under the cover of declared goods and, therefore, it is a case of smuggling of non-declared goods under the guise and cover of declared goods. It is, therefore, neither a case of mis-classification nor bona fide mis-declaration and is, therefore, outside the purview of the Settlement Commission under the provisions of Section 127B of the Act. Heavy reliance has been placed, in this respect, on the judgment of Hon ble Madras High Court in the case of Commissioner of Customs (AIR) Chennai v. Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry referred to in the applications cannot be co-related to the goods under seizure. We have also perused the Panchnama dated 7-8-2001 of the seizure (Annexure-C of the application) and we find that the goods under seizure are not in original import packing and that they cannot be connected to the goods claimed to have been imported in 1998-99. We also observe that no copies of the concerned Bills of Entry have been submitted by the applicant with his applications, nor any material brought before us during the hearing to show that the goods imported and the goods seized are the same. In view of the above, we hold that the applicant does not satisfy Clause (a) of sub-section (1) of Section 127B of the Act. 14. We would also like to mention that the SCN dated 25-1-2002 referred to in these applications is not in respect of any Bill of Entry, not even the three Bills of Entry referred to in the applications and, therefore, the further requirements of Clause (a) of sub-section (1) of Section 127B is also not fulfilled. In view of our findings above, we are of the view that the applicant are not eligible to approach the Settlement Commission. 15. Since, we have concluded the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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