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TMI Blog2005 (7) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act is quite wider and it cannot be restricted in such a narrow manner. On this point of law, the learned Counsel appearing for the Customs Department as well as the learned Counsel appearing for private parties have made their submissions and have cited various judgments in support of their respective submissions. 2. Mr. Rana the learned Senior Counsel appearing for the Customs Department has sought to argue in Writ Petition No. 115 of 2004 on this issue. He pointed out factually in the above writ petition that the Respondents imported duty free raw material as input which was not at all used and could not be used in the manufacture of export products. The contention of the learned Counsel for the Customs Department is that the Respondents in the aforesaid Writ Petition No. 115/2004 had availed of various benefits under the DEEC Scheme and evaded huge payment of duty by practicing a systematic fraud over a number of years by manipulation of records. It is also contended by Mr. Rana that the Respondent had shown higher percentage of wastage i.e. almost 12% though admittedly it was not more than 4.16%. It is also the contention of Mr. Rana that the imported goods were ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import or export of goods, as the case may be, and in relation to such bill of entry or shipping bill, a show cause notice has been issued to him by the proper officer; (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) be fore the expiry of one hundred and eighty days from the date of the seizure. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na, in case of fraud or misdeclaration or suppression of facts, the remedy of approaching the Settlement Commission under Section 127D is not permissible. In that behalf, Mr. Rana referred to Statement of Objects at the time when the said Chapter XIV-A of the Customs Act was brought in by the amended Act 21 of 1998 which came into force from 1st Au gust, 1998. In the said Statement of Objects annexed to the Bill it is mentioned clearly that the Government has decided to provide Chapter XIV-A in the Customs Act to provide setting up of the Customs and Central Excise Settlement Commissions on the lines of a similar Commission already existing under the Income-tax Act, 1961. In the said Bill it is mentioned that the Settlement Commission will also entertain application for settlement of cases relating to the levy, assessment and collection of customs duty, or any appeal or revision in connection with such levy, assessment or collection. Any importer or exporter or any person who has incurred any liability under any law levying duties of customs may make an application in such form and in such a manner as may be prescribed stating inter alia a true and full disclosure of his duty liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a stage of investigation/enquiries where the material gathered by him is likely to establish the particulars of such income or fraud, the assessee can not be allowed to defeat or forestall, as the case may be, the entire exercise of the income-tax authorities just by approaching the Commission. In such a case, it cannot be said that he is acting voluntarily or in good faith. He should not be allowed to take advantage of the comparatively easy course of settlement. He must be allowed to face the normal channels of assessment/appeal etc. Section 243-C is meant for those assessees who seek to disclose income not disclosed before the Officer including "the manner in which such income has been derived". If the department already knows and has gathered particulars of such income and the manner in which it has been derived, there is no 'disclosure' by the assessee. Let it be remembered that the words in question in Section 245-D (1A)] are not words of limitation nor are they meant to help unscrupulous assessees. Chapter XIX-A is a part of the Income-tax Act and must be construed consistent with the over all scheme and object. The Chapter is meant fur those assessees who want to disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax authorities had made extensive investigation and inquiries wherein they had collected voluminous material, which, according to them, established the particulars of concealment of income on the part of the respondent-assessee. It was so held by the Assessing Officer - with whom they first appellate authority agreed, no doubt, subsequent to the filing of the application under Section 245-C but before the passing of the impugned order." It should be noted here that prior to 1991 amendment, in Section 243D there was a second proviso which provided that the application for settlement shall not be proceeded with if the Commissioner objects to the application being proceeded on the ground that concealment of particulars of income on the part of the Applicant or perpetration of fraud by him for evading any tax has been established or likely to be established by the Income Tax Authorities. To put in other words, if the Commissioner objects to entertaining of such an application, the Commissioner can reject the same. Whereas, subsequently this condition of objection by the Commissioner has been deleted by the amendment to Income-tax Act which came into force in 1991. 7. Mr. Rana t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits short-levy on ac count of misclassification or otherwise of goods. In order to avail the benefit of filing of an application under Section 127A of the Act, an importer, exporter or any other person should first establish that the case pleaded before the Commission is in respect of levy, assessment and collection of customs duty, which may on account of misclassification or otherwise of goods." 9. Thereafter Mr. Rana relied upon the observations of the learned Single Judge in Paragraph No. 13 of the aforesaid judgment, which read as under:- "Only after the above fact was detected and found out, the second respondent filed the application before the Commission on the ground that there was some misclassification of the goods. Further it is seen that the second respondent had imported the goods in the name of M/s. Goutham Enterprises without their knowledge and consent. He did not also disclose the goods in the consignment till the same was found out by the department. From the facts as seen above, I am of the view that it is not the case of misclassification and it is the case of misdeclaration and the case of smuggling." 10. Mr. Rana also relied upon the observations of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Commissioner under the said sub-section (1A). Learned Counsel for the Union of India, however, drew our attention to the format set out prior to the commencement of the afore-quoted order, in which it is, inter alia, stated: "11. Section under which the: 245-D (1) of the Income-tax Act, 1961." order is passed "6. In his submission, the application had, therefore been rejected not only under sub-section (1A) but also under sub-section (1). The submission has only to be stated to be rejected. It is patent from para 7.1, which we have quoted, that the only reason for not proceeding with the applications was the objection raised by the Commissioner under sub-section (1A). This, it being admitted, being the common mode in which the orders were passed, clearly every application rejected only because of the objection raised by Commissioner." "7. Having regard to the fact that the said sub-section (1A) was removed from the statute book subsequent to 1991, we see no reason why the Settlement Commission could not have entertained applications, the like of which had not been proceeded with therefore only by reason of the objections of the Commissioner, and no convincing argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash has again not been adopted by the Court of Appeal in (1968) 1 QB 487. Having regard to the context in which the said expression appeared in the particular provision which came up for interpretation, the Court of Appeal construed the expression to mean "contracted to be paid". Therefore, the contention of Mr. Daphtary that the expression "paid" should be construed as "ought to have been paid" and even when no duty has been assessed, the entire duty when subsequently assessed will be a short-levy, which is also supported by the decision of this Court in (1963) 3 SCR 893 - (AIR 1963 SC 1062), has to be accepted. If follows that in order to attract Rule 10, it is not necessary that some amount of duty should have been assessed and that the said amount should have also been actually paid. That provision will apply even to cases where there has been a nil assessment in which case the entire duty later on assessed must be considered to be the duty originally short-levied. There is also no difficulty in calculating the period of three months. As pointed out above, the Act and the Rules provide very elaborately the stage and the time when the duty is to be paid and if that is so that mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court in the case of George Da Costa v. Con holler of Estate Duty, Mysore - AIR 1967 SC 849. In paragraph No. 6 of the aforesaid judgment, the Hon'ble Supreme Court has observed as under:- "The second part of the section has two limbs: the deceased must be entirely excluded (i) from the property, and (ii) from any benefit by contract or otherwise. It was argued for the appellant that the expression "by con- tract or otherwise" should be construed ejusdem generis and reference was made to the decision of Hamilton, J. in 191 1-2 KB 688. On this aspect of the case we think that the argument of the appellant is justified. In the context of the section the word "otherwise" should, in our opinion, be construed ejusdem generis and it must be interpreted to mean some kind of legal obligation or some transaction enforceable at law or in equity which, though not in the form of a contract, may confer a benefit on the donor." 14. Thereafter, Mr. Rana referred to another judgment of the Hon'ble supreme Court in the case of Kamlesh Kumar Sharma v. Yogesh Kumar Gupta Ors.- AIR 1998 SC 1021, on the same principle of ejusdem generis to interpret the words "or otherwise", where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recovery of possession" as employed by Section 41(1)." 16. Mr. Rana thereafter contended that the Settlement Commission as provided under Chapter XIV-A of the said Act would have limited jurisdiction. In the sense only in case of short levy on account of misclassification or other wise, the Commission would have jurisdiction and not other cases. He also strongly contended that the Commission can have jurisdiction only in case the show cause notice is issued under Section 28 of the said Act and not in the cases wherein show cause notices are issued under Sections 111, 112, 113, 114, 115, 116, 117, 119, 120 and 121 of the Act. He also contended that a show cause notice is sued under Section 124 for confiscation of goods or imposition of penalty and involving aforesaid Sections will not be a show cause notice for levy, assessment and collection of duty, and in case of such a show cause notice, the Settlement Commission ought not to interfere. Even if the notice under Section 124 of the said Act is issued the Commission would not have jurisdiction since the cases of confiscation are of serious fraud or smuggling. Mr. Rana contended that the Set tlement Commission is meant only fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecame aware of the same, they immediately took remedial steps and in fact terminated the services of the then Managing Director and voluntarily deposited an amount of Rs. 357.45 laths which was virtually the entire duty computed on the imports made from the three ports during the last nine years, without even requesting that a show cause notice be issued. 18. Mr. Shroff while dealing with the scope of Section 127A(b) of the Customs Act, sought to contend that the application must be for settlement of a case viz, any proceeding under the Customs Act or any other Act for levy, assessment and collection of customs duty, or any proceeding by way of an appeal or revision in connection with such levy, assessment or collection, which may be pending before the proper officer of the Central Government on the date on which the application under sub-section (1) of Section 127B is made. While dealing with the scope of Section 127B (1) of the Customs Act, Mr. Shroff has contended that the application must contain full and true disclosure of the duty liability which has not been disclosed before the proper officer, and it should also contain the manner in which such liability has been incurred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f goods and the Settlement Commission will have no jurisdiction in the cases involving smuggling, misdeclaration and any wilful at tempt to evade payment of customs duty or even involving non-levy of duty, is not sustainable. He contends that if such a narrow and restricted meaning is given, the Settlement Commission will loose its utility and nobody will approach the Commission for settling the cases. Mr. Shroff sought to contend that the wording of the aforesaid provision that "the short levy on account of misclassification or otherwise" would clearly mean short levy arising on account of misclassification or otherwise. According to him the words "or otherwise" should be given wider meaning and not a narrow meaning applying the principle of ejusdem generis. 20. Mr. Shroff thereafter referred to and relied upon the judgment of the Supreme Court in the case of N.B. Sanjana, Assistant Collector of Central Excise, Bombay Ors. v. The Elphinstone Spinning and Weaving Mills Co. Ltd. - 1978 (2) E.L.T. 399 (S.C.). Referring to the aforesaid judgment, the learned Counsel submits that the said judgment in fact assists the Respondents wherein in no uncertain terms the Supreme Court has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to our notice the Annexure to the said Form. Clause 3 of the said Annexure to the Form, requires for the particulars as to the duty liability accepted out of the total duty demanded in the show cause notice, if any, issued and the manner in which such duty liability has been derived. The said Annexure to the aforesaid Form, only contemplates four items. A perusal of the said Form arid the Annexure, indicates that what is sought is the information regarding the Bill of Entry/Shipping Bill, details regarding additional amount of duty disclosed and accepted to be payable, and the full and true disclosure of the facts regarding the issues to be settled including the terms of settlement sought for by the Applicant. Mr. Shroff contended that the Form clearly indicates that the scope of the Settlement Commission under Section 127B is not restricted as sought to be contended by the learned Counsel for the Department. 22. Mr. Shroff contended that the judgment in the case of N.B. Sanjana, Assistant Collector of Central Excise, Bombay and Others v. The Elphinstone Spinning and Weaving Mills Co. Ltd. - 1978 (2) E.L.T. (J399) (S.C.) = AIR 1971 SC 2039 referred to and relied upon by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses or its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore ad judge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues." 23. Mr. Shroff thereafter referred to and relied upon the judgment of our High Court in the case of All India Federation of Tax Practitioners and Another v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redemption by paying the redemption fine under Section 123 of the said Act. In that context, he referred to Section 127H of the said Act which clearly empowers the Settlement Commission to interfere with the redemption fine imposed. Cases of confiscation, are, therefore, statutorily brought within the jurisdiction of the Settlement Commission. It is the contention of Mr. Harishankar that if one were to analyse the jurisdiction of Settlement Commission and were to restrict it to show cause notice under Section 28 then there is no need for providing Section 127H whereby the Commission can even interfere with regard to redemption fine which can be imposed under Section 123. Therefore it is the contention of Mr. Harishankar that the very provision of Section 127H makes it clear that even the cases of confiscation would come within the perview of Settlement Commission. Therefore, logically even the notice issued under Section 124 will have to be covered since the notice under Section 124 of the Act is for the purpose of confiscation. Referring to the judgments in the case of CIT v. Express Newspapers Ltd. - (1994) 2 SCC 374 and in the case of Kuldeep Industrial Corporation v. I.T.O.- 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression "levy, assessment and collection" which appears in Section 13 of the Finance Act? To "levy" a tax means "to impose or assess" or "to impose, assess or collect under the authority of law." It is a unilateral act of superior legislative power to declare the subjects and rates of taxation and to authorise the Collector to proceed to collect the tax. "Assessment" is the official determination of liability of a person to pay a particular tax. "Collection" is the power to gather in money for takes, by enforced payment if necessary. The levy of taxes is generally a legislative function; assessment is a quasi-judicial function and collection an executive function. These three expressions "levy", "assessment" and "collection" are of the widest significance and embrace in their broad sweep all the proceedings which can possibly be imagined for raising money by the exercise of the power of taxation from the inception to the conclusion of the proceedings." The above judgment was approved by the Constitution Bench of the Hon'ble Supreme Court in the case of A.N. Lakshman Shenoy v. I.T.O. - AIR 1958 SC 790. 26. Mr. Harishankar thereafter referred to and relied upon the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer-in- charge of the nearest police station. These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are conferred on Central Excise Officers, are really in support of their main function of levy and collection of duty on excisable goods." Mr. Harishankar contended that the very purpose of such coercive power is to levy and collect duty. Mr. Harishankar contended that even the proceeding for confiscation and redemption would also involve assessment and collection of duty. In support of this contention, Mr. Harishankar has referred to and relied upon the judgment of the Supreme Court in the case of Mohan Meakin Ltd. v. C.C.E. - 2000 (115) E.L.T. 3 (S.C.) wherein the Supreme Court while dealing with Section 125 of the Act has observed as under:- "Section 125 of the Act empowers the authorities after adjudication to re lease the goods to the person from whose possession the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Harishankar, that the submission of the learned Counsel for the Department, that the words "or otherwise" appearing in Section 127B have to be read ejusdem generis or noscitur a sociis with the word "misclassification" cannot be sustained. He has contended that the words "or otherwise" will have to be construed in a wider manner and not in a narrow manner. In support of his submission, Mr. Harishankar has referred to and relied upon the judgment of the Supreme Court in the case of Lilavati Bai v. State of Mysore - AIR 1957 SC 521 And another judgment in the case of Western India Plywood v. P. Ashokan - (1997) 7 SCC 638, The judgment in the Lilavati Bai (supra) has been followed by this Hon'ble Court in the case of Abdul gafar A. Nadiadwala v. Assistant Commissioner of Income Tax - 2004 (267) ITR 488. Referring to the aforesaid cases, Mr. Harishankar has contended that the principle of esjusdem generis have no application at all, as the single expression "misclassification" cannot constitute a genus. 30. Mr. Harishankar has contended that whenever a show cause notice is issued to a party, apparently, the Department was aware of either concealment or fraud on the part of the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary. It is vital to note here that, such enquiry or investigation need not be restricted only to the matters covered under the Application but can extend to any other matter relating to the case, as can be seen from the provisions of Section 127C(6). 32. Referring to the provisions of Section 127C(7), Mr. Harishankar has pointed out that, after examining the material before it, the Settlement Commission can examine the further evidence, either placed before it or obtained by it suo motu. Mr. Harishankar pointed out this power of the Settlement Commission under the provisions of Section 127C (7) to requisition evidence on its own motion and examine the same is not even vested with the adjudicating authority. He brought to our notice that the Settlement Commission has complete power to pass such order as it thinks fit, and the same is not limited to the matter covered by the application but extends to any other matter relating to the case not covered by the application, referred to in the report either of the jurisdictional Commissioner or of the Commissioner (Investigation). He also pointed out that if the Settlement Commission finds that the order of settlement had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reopening of the completed proceedings not for the benefit of the assessee but in the interests of the Revenue. It contemplates a situation where the case before the commission cannot be satisfactory settled unless some previously concluded proceedings are reopened which would normally be to the prejudice of the assessee." 34. Referring to the provisions of Section 127H (1) of the Customs Act, Mr. Harishankar has pointed out that the Settlement Commission is empowered to grant immunity from prosecution, fine and penalty, and that this power is discretionary. He emphasised that the immunity is not granted as a matter of course. He has stated that the immunity may be granted only if there is a full and true disclosure of duty liability by the Applicant, and even in such a case, there is no mandate on the Settlement Commission to grant immunity; the power re mains entirely discretionary, though the discretions no doubt, has to be exercised judiciously, and not capriciously. The proviso to Section 127H(1) makes it clear that such immunity cannot be granted when the prosecution proceedings have been already instituted before filing of the application by the Applicant. Under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the cases the Supreme Court was dealing with the cases prior to 1991, and as such the same ought not to be applied. Prior to 1991, the veto power was conferred on the Commissioner of Income Tax in cases of fraud, and this power no longer existed after 1991. The Commissioner had power to grant veto in the sense that he could prevent the Settlement Commission from proceeding with the application being heard, which provision existed only up to 1991 and warn deleted in the year, 1991. The Supreme Court, in the above mentioned two cases was dealing with the cases pertaining to the situation prior to 1991. Mr. Harishankar also pointed out that the observations of the Madras High Court - that in case of bona fide cases only the Settlement Commission will have jurisdiction, would not be proper since if one were to look into the provisions of Section 127H. It would be clear that the Settlement Commission can grant immunity from the prosecution, fine and penalty under the Customs Act or any other law including the Indian Penal Code, which means, obviously, the parties who have committed a fraud, smuggling or gross misdeclaration, etc. Mr. Harishankar contends that the observations of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and Mr. Shroff and contended that the Settlement Commission has wider jurisdiction and not the restricted jurisdiction as sought to the contended by Mr. Rana, Mr. Shreedharan, on the issue of "or otherwise" referred to the judgment of the Supreme Court in the case of Rajasthan State Electricity Board, Jaipur v. Mohan Lal Ors. - AIR 1967 Supreme Court 1857, wherein in paragraph No. 4, the Supreme Court has ob served as under :- "To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific word must apply not to different objects of a widely differing character but to something which can be called a class of kind of objects. Where this is lacking, the, rule cannot apply, but the mention of a single species does not constitute a genus." To put in other words, it is submitted by Mr. Shreedharan that mere mention of a single species will not constitute genus, so that the principle of ejusdem generis will not apply. In support of his submissions, Mr. Shreedharan also referred to and relied upon the Division Bench judgment of our High Court in the case of Pratibha Syntex Ltd. v. Union of India - 2003 (157) E.L.T. 141 (Born.) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Com mission, and that the Settlement Commission has no jurisdiction in the other, cases and it cannot even entertain the application for settlement. With regard to the above contention a perusal of Section 127B makes it abundantly clear that the Applicant must be an importer or exporter or any other person who can file an application at any stage of a case relating to him. The above wording make it clear that either the importer, or the exporter or any person can approach the Settlement Commission at any stage. Emphasis is that the person need not come right at the beginning, he can come even at the later stage or at the appellate stage or at revisional stage. Section 127B makes it clear that such an application should be as per the form prescribed by the rules. As we have pointed out earlier the form prescribed by the rules very clearly indicates that the applicant should furnish the details regarding the Bill of Entry/shipping Bill in relation to the case of settlement. The Applicant should indicate the additional amount of duty pay able on the goods covered in the Bill of Entry/Shipping Bill, duty liability accepted out of the total duty demanded in the show cause notice, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the Parliament felt it necessary to introduce such a remedial measure by way of a Settlement Commission and accordingly Chapter XIV-A was provided. Another aspect to be noted is that the entire scheme under Chapter XIV-A as enumerated hereinabove clearly indicates that the Settlement Commission has been given very wide powers to settle the matter. It has also been given the widest discretion including the power to declare the settlement to be void with a power to direct de novo adjudication. Ample power is given to the Settlement Commission to protect the interests of the revenue and even with regard to the grant of immunity from prosecution and penalty. However, as indicated hereinabove, the Settlement Commission does not grant immunity as a matter of course. It has discretion to grant immunity in a given case. Even if it were to grant immunity, the Settlement Commission can always impose conditions while doing so. The Settlement Commission has power even to attach the properties of the Applicant to secure the interest of the Revenue during the pendency of the proceedings before him, which power even the adjudicating authority does not have. As rightly pointed out by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or anticipate all possible abuses." "There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as in valid." "There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses." 44. The entire approach with regard to such legislation is to unearth frauds and dishonesty so as to collect the revenue for the Government. By the process in fact the duty which was illegally not paid by various parties would ultimately come to the Revenue and if one were to restrict the interpretation to mean only the bona fide cases, then there would be no scope of unearthing the revenue for the Government. As we are very clear in our mind that the earlier part of Section 127B lays down the jurisdiction and the later part only deals with the rules whereby certain details are to be provided. Hence, the entire argument with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 1991 the amendment had taken place and the law had completely changed, which apparently has not been noted by the learned Single Judge of the Madras High Court. Over and above, there is a clear distinction in the Income Tax Law and the Customs Act. In the sense, in the Income Tax Law any application must be made before the investigation has started or before the authority has collected any material or any notice is issued to the applicant. In the Income Tax Law there a voluntary aspect in the disclosure. On the contrary, in the Customs Act, the provision makes it mandatory that the Applicant can file an application only after show cause notice is issued, which show cause notice as we have pointed out hereinabove, would pertain even to confiscation, i.e. to say the person who has committed fraud or smuggling or deliberate misdeclaration would only receive such show cause notice and such a show cause notice is essential ingredient before making an application. If that be so, there can never be any case of voluntary aspect in the case of application for settlement before the Settlement Commission under the Customs Act. The learned Single Judge of the Madras High Court did nut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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