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TMI Blog2007 (12) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... nd normal clearance through customs from the green channel he was intercepted and asked if he was carrying any contraband goods like gold, silver, diamond or drugs etc. To this he replied in the negative. Not being satisfied with his reply, his baggage and person were examined by the Customs. As a result, 5877 carats of diamonds valued at approx. Rs. 2,79,61,710/- were recovered from the baggage. The personal search resulted in recovery of 97 grams of gold valuing Rs. 50,343/-. The recovered diamonds and gold were seized. The personal search of Shri Bharat K. Bodhra, who came to receive the applicant revealed that he was carrying Rs. 30,000/- with him. Amount of Rs. 30,000/- recovered from Shri Bodhra was also taken over for further investigations. As a follow-up action, premises of M/s. I.P. Patel & Co. were searched. All the diamonds under detention in the office of M/s. I.P. Patel & Co., as detailed in the Panchanama dated 24-4-2003 and 25-4-2003 including those inventoried on 18-6-2003, totally weighing 34147.66 carats and collectively valued at Rs. 36,46,66,620/- were also seized. 3. After investigations, Show Cause Notice dated 17-10-2003 was issued by the Joint Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring was held on 28-9-2005. The Bench, vide Admission Order No. 22/2005-Cus. dated 9-11-2005, had allowed the applications to be proceeded with under sub-section (1) of Section 127C of the Custom Act, 1962. The applicant was directed to deposit the admitted duty liability of Rs. 83,11,742/- within 30 days of receipt of the order and also execute a bond covering the value of the goods with a Bank Guarantee for Rs. 25,00,000/- and report compliance thereof to the Commission and the Revenue. The Commission further ordered that on deposit of the admitted duty liability and execution of Bond with Bank Guarantee, the Revenue shall release the 5877 carats of cut and polished diamonds to the applicant, which were seized from his possession. 10. Thereafter, the applicant filed Writ Petition No. 8622 of 2005 before the Hon'ble Bombay High Court and made the following prayers :- (a) To issue a writ of mandamus or in the nature of mandamus or any other appropriate writ or direction, directing the Respondent no. 2 (Commissioner of Customs, CSI Airport, Sahar, Mumbai) and 3 (Jt. Commissioner of Customs, AIU, CSI Airport, Sahar, Mumbai) to comply with the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hearing and final disposal of the writ petition, the Hon'ble Court may be pleased to stay operation/implementation of the impugned Order No. 22/2005-Cus. dated 9-11-2005 of the Settlement Commission. (d) Ad-interim reliefs in terms of clause (b) & (c) above be granted. 12. The Hon'ble High Court, vide Order dated 22-2-2006, passed the following order :- "1. Heard learned counsel for the petitioners and the respondents. The above Writ Petition has already been admitted on 12-1-2006. 2. Having regard to the peculiar facts and circumstances involved in the above case, especially in the case of respondent No. 1, no bill of entry was filed and as far as the other respondents are concerned, they had not complied with the provisions of Section 77 of the Customs Act, 1962, therefore, whether the Settlement Commission was justified in passing the impugned order is the question required to be considered in the petition filed by the revenue. Hence there will be an interim relief in terms of prayer (c) as set out in Writ Petition No. 9171 of 2005. 3. For the reasons mentioned hereinabove, there shall be no interim reliefs in Writ Petition No. 8622 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her submitted that the Commissioner of Customs, CSI Airport, Mumbai, vide report dated 30-9-2005, had calculated duty (at the baggage rate of 50%) of Rs. 18,23,33,310.12/- on the 34147.66 carats of cut & polished diamonds valued at Rs. 36,46,66,620.25/- He, therefore, submitted that the applications filed by M/s. I.P. Patel & other co-applicants may not be admitted. 16. The ld. Consultant for the Revenue further submitted that the application of Shri Manish Kalvadiya may not be finally settled as the Revenue has filed SLP in the Hon'ble Supreme Court against the Order dated 21-7-2005 of the Hon'ble Bombay High Court relating to smuggling cases. The issue of maintainability of the application where no bill of entry has been filed (in respect of baggage cases) would be decided finally by the Apex Court possibly within 6 months. 17. The ld. Consultant further submitted that SLP is also being filed by the Revenue in the Apex Court against the said Order dated 20-12-2006 of the Hon'ble Bombay High Court in the instant case. He further referred to Para 8 of Order No. 150/lnterim Order/Cus/MGR/2006 dated 29-9-2006, passed by this Bench in the case of Shri Sanjay B. Chawan, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted duty liability of Rs. 83,11,742/- has already been deposited as per the Section 127B(1A) of the Act on 2-7-2007 in the office of the Commissioner of Customs, CSI Airport, Mumbai. He submitted as per the General Clauses Act, 1897 the first day i.e. 1-6-2007 has to be excluded. He further submitted that the last computed day i.e. 1-7-2007 was a holiday. The applicant has, therefore, made the payment within the time limit. He also briefly narrated the facts of the case and submitted that the applications filed by the applicant Shri Manish Kalvadiya and co-applicants S/Shri Mahesh Savani, Girish Bodhra and Bharat Bodhra may be admitted and finally settled. With reference to the application of M/s. I.P. Patel & Co., he submitted that the co-applicant would appear before the adjudicating authority for fighting out its case. 21. The Revenue was represented by Shri M. Palnivel, Air Customs Superintendent, AIU, CSI Airport, Mumbai. The representative of the Revenue submitted that the Revenue objects to the admission of the application filed by the applicant Shri Manish Kalvadiya and others in view of the SLP being filed before the Hon'ble Supreme Court against the Order dated 20-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of payment of duty then the applicant will be requested to re-validate the said 3 Banker's Cheques, for further action. 23. Shri M. Palnivel, the representative of the Revenue, vide letter dated 30-10-2007 confirmed that the said letter dated 2-7-2007 of the Advocate of the applicant enclosing the said 3 Banker's Cheques was received in his office on 2-7-2007. 24. Bench has gone through the case records and the submissions of the applicant and the Revenue. The representative of the Revenue was directed to submit a simple confirmation as to the date of receipt by Customs of the letter dated 2-7-2007 of the Advocate of the applicant enclosing the said 3 Banker's Cheques by 16-10-2007. He had taken another 2 weeks after that date to submit the information. The Admission order dated 9-11-2005 by which the application of Shri Manish Kalvadia and others were admitted has been quashed by the Hon'ble Bombay High Court vide its order dated 20-12-2006. In the later half of Para 12 of the said High Court order, the Court has set aside the impugned order and remitted the case back to the Settlement Commission with a direction to decide it afresh in accordance with law, leaving all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 20-12-2006 and produced before the Bench, the order of the Hon'ble Bombay High Court is binding on the Bench. 25.3 The Bench further notes that the applicant had filed the application way back on 16-1-2004. The Bench is, therefore, of the view that the matter need not be kept pending. Further, as per new Section 127C(6) of the Customs Act, 1962, as introduced vide Finance Act, 2007, "an order under sub-section (6) shall not be passed in respect of an application filed on or before the 31st day of May, 2007, later than the 29th February, 2008 and in respect of an application made on or after the 1st day of June, 2007, after nine months from the last day of- the month in which the application was made, failing which the settlement proceedings shall abate, and the adjudicating authority before whom the proceeding at the time of making the application was pending, shall dispose of the case in accordance with the provisions of this Act as if no application under Section 127B had been made." It is, therefore, necessary to not to keep the case pending but to dispose of this long pending application which would require another hearing for final settlement. There is also no stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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