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TMI Blog2003 (10) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... in issue relating to jurisdiction of the Commission to entertain the application, we feel it expedient to set out the facts (as relevant for comprehension) of the case briefly. On the basis of intelligence regarding concealment of ball bearings in the consignment of Damar Batu, the officers of Customs, Pune examined the consignment covered by Bill of Entry No. 000479, dated 5-10-99 filed by M/s. Sai Impex, Sadashiv Peth, Pune when they found ball bearings valued at Rs. 14,22,178/- CIF (estimated market value of Rs. 58,91,006/-) concealed in the consignment of declared cargo i.e., Damar Batu with a declared CIF value of Rs. 57,074/-. Further investigation revealed clearance of another consignment vide B/E 000393, dated 16-9-99 adopting similar modus operandi. On search of the godown/Rooms at Geetha Bhawan, Alandi from 14-10-99 to 17-10-99, the officers recovered ball bearings of foreign origin valued at Rs. 37,54,523.5 CIF. Both consignments were placed under seizure. It was found that M/s. Sai Impex had totally imported Damar Batu on 11 occasions starting from 1-12-97 from the same foreign suppliers. The packing lists were found to be similar. After weighment of one drum filled wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commission - the first one dated 20/23rd February, 2001 and the second dated 24th October, 2001, referred to earlier in this order by filing a writ in the Hon ble High Court at Bombay and the Hon ble High Court set aside the order dated 24th October, 2001 of the Commission with further directions mentioned in the beginning para of the order. 6. A hearing was fixed for 3-10-2003, but the hearing could not take place for want of quorum due to bereavement of one of the Members of the Bench, and the hearing was adjourned, and ultimately, the matter was heard on 17-10-2003. Shri V.M. Doiphode, Advocate represented the Applicant, while Shri K.M. Mondal, Advocate appeared for the Revenue. At the outset, Shri Doiphode pointed out that since the Revenue filed the writ which was allowed by the High Court, only Revenue has to first make their submissions and that he would reply after hearing the arguments of Revenue. 7. Shri Mondal, Advocate, briefly narrated the sequence of events, and argued that the Commission can admit an application for settlement only if the entry criteria laid down in Section 127B(1) of the Act are satisfied. As per Clause (a) under the first proviso to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at significance. He pointed out that Clause (a) under the first proviso to Section 127B(1) requires filing of a Bill of Entry only and even the SCN is only w.r.t. such Bill of Entry, and the said clause has nowhere contemplated declaration of all goods in the Bill of Entry. That may also be the reason as to why the said clause specifies issue of a SCN in relation to the Bill of Entry only. He added that the exclusion is only in respect of goods to which Section 123 applies, or to goods in relation to which offence under NDPS Act, 1985 has been committed, and not all smuggled goods. He pointed out that even the Advocate for Revenue has conceded that the proceedings relate to a case . He further argued that the applicant has declared the total No. of packages and weight correctly in the Bill of Entry and also it is not the case of Revenue that the ball bearings were recovered from any undeclared package/carton. He distinguished the judgment of Madras High Court in Commissioner of Customs (AIR), Chennai v. Customs Central Excise Settlement Commission, referred supra by submitting that in the said case, a third party trader attempted to clear the goods by filing a Bill of Entry in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omation P. Ltd. in the name of M/s. Gautham Enterprises, who had disclaimed the import of the above goods, and attempts were being made to clear them. Against the admission of the Settlement Application by the Additional Bench at Chennai, the Commissioner of Customs (AIR) filed a writ in the Madras High Court. More or less, the arguments made by the learned Advocate Shri Doiphode were also made before the Madras High Court, but the High Court did not accept them. The relevant extracts from the said judgment are reproduced below for the sake of brevity. . From the facts as seen above, I am of the view that it is not the case of mis-classification and it is the case of misdeclaration and the case of smuggling. The Supreme Court in the case of Collector of Customs, New Delhi v. Shaila Kapoor [1999 (113) E.L.T. 757 (S.C.) = 2000 (9) S.C.C. 487] held that where the Bill of Entry showing value of the machinery without including therein the value of accessories and without even disclosing that any parts or accessories and without even disclosing that any parts or accessories in addition to the machines were being imported it was a case of smuggling. In such circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Para 21.0(ii) and (iii) of the show cause notice, it is clear that they do not relate to a case of levy, assessment and collection of customs duty, which would fall under the definition of case under Section 127B of the Act to give cause of action for the second respondent to make an application before the Commission. Hence, for the above reasons, I do not agree with the submissions of the learned Counsel for the respondent that it is a case as defined under Section 127A(b) of the Act. When once this court comes to a conclusion that the facts and circumstances of the case does not indicate a case of levy, assessment and collection of customs duty and short-levy on account of misclassification or otherwise of goods, the application filed by the second respondent cannot be brought under Section 127B of the Act. When once the said conclusion is arrived the submission of the learned Counsel for the second respondent to the second proviso to Section 127B of the Act also cannot be accepted, more particularly the said proviso to Section 127B is subject to main proviso to Section 127B. Once the application filed by the second respondent cannot be brought under the substantial provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods [or, where such owner is not known, the person from whose possession or custody such goods have been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods. 16. The import of the ball bearings is not prohibited and in case of import of non-prohibited goods, the above provision very clearly says that the owner of the goods shall be given an option to pay in lieu of confiscation such fine as the adjudicating officer may think fit. 17. When the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occurring in this section, are concerned. Or otherwise words would cover cases where goods are not declared or misdeclared in the Bill of Entry. This aspect was not gone into by the Hon ble High Court. This view finds further support from the words such dutiable goods occurring in Section 127B reproduced above. While putting the proviso for need of filing the Bill of Entry in the same section, it is not mentioned therein that Bill of Entry should have been filed in respect of such goods but only words a Bill of Entry or a shipping bill in respect of import or export of goods , are mentioned in the said proviso. 19. The definition of Case refers to proceedings which has a wide amplitude. The definition of case therefore does not restrict the proceedings only to the goods, which are declared in the Bill of Entry, but covers any proceedings, which relates to levy, assessment and collection of customs duty. Accordingly, the definition of case will also cover a proceeding in respect of goods actually found on examination because such goods are also subject to levy, assessment and collection of duty. Any means all and of each and every type. Once again since the Hon ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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