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TMI Blog2016 (11) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples of natural justice. On perusal of the record, we find that the Settlement Commission has referred to certain reports dated 1st March 2016, which were admittedly never supplied to the Petitioner. This fact is undisputed by the Revenue. This being the case, the impugned order cannot be sustained on this ground also and has to be quashed and set aside. Petition allowed - matter remanded back. - WRIT PETITION NO. 10422 OF 2016 - - - Dated:- 21-11-2016 - S.C. DHARMADHIKARI B.P. COLABAWALLA JJ. Mr. Sujay Kantawala with Mr. Brijesh Pathak for the Petitioner. Mr. M. Dwivedi with Mr. Sham V. Walve for Respondent No.2. JUDGMENT [ PER B. P. COLABAWALLA J. ] :- 1. Rule. Respondents waive service. By consent of parties, rule made returnable forthwith and heard finally. 2. By this Writ Petition under Article 226 of the Constitution of India, the Petitioner has challenged the common order dated 14th March, 2016 (for short the impugned order ) [Exh. J to the Petition] passed by the Settlement Commission, Additional Bench, Customs and Central Excise, Mumbai (Respondent No.4 herein) by which it rejected the Settlement Application filed by the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs and Central Excise, Mumbai, who has passed the impugned order. All the above authorities viz. Respondent Nos.2 to 4 exercised powers and functions under the provisions of the Customs Act, 1962 (for short the Act ) and its allied statutes. (b) It is the case of the Petitioner that in the normal course of business it imported Air Freshners and Choco-Pie Biscuits. Accordingly, in the month of December 2014, one Mr Zeeshan Khan approached the Petitioner for import of items being regularly imported by him and offered compensation for the same. Accordingly, an agreement was also entered into between the Petitioner and the said Mr Zeeshan Khan. It appears that during the course of import, some error occurred and extra items were dispatched in the consignment. On examination of the Bill of Entry No.8158086 dated 31st January 2015, the Department found Air Fresheners, Perfumes, Body Spray and other items such as cigarettes, cylinders of refrigerant-22 gas, fabrics etc. This Bill of Entry was with reference to one container and there is no dispute that this Bill of Entry (No.8158086) has been filed long before the issuance of the SCN. (c) As far as the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 14th March, 2016. According to the Petitioner, Respondent No.4 has not given a fair and just treatment to the Petitioner's Application which amounts to a gross abuse of the powers conferred under the Act. According to the Petitioner the impugned order is also passed in violation of the principles of natural justice and fair play and are violative of the Petitioner's fundamental rights enshrined under Articles 14 and 19(1)(g) of the Constitution of India. It is the case of the Petitioner that whilst passing the impugned order, Respondent No.4 has made a reference to a certain report filed by the Investigating Agency dated 1st March, 2016, a copy of which has never been supplied to the Petitioner. This alone, according to the Petitioner, is an incurable breach of the principles of natural justice and which would make the impugned order vulnerable to challenge in writ jurisdiction. It is in these circumstances that the Petitioner is before us assailing the legality and validity of the impugned order dated 14th March, 2016 passed by Respondent No.4. 5. In this factual backdrop, Mr Kantawala, learned counsel appearing on behalf of the Petitioner, submitted that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration the representations made by the Petitioner vide its letters dated 5th February, 2016 and 25th February, 2016 respectively, but instead has relied upon the aforesaid reports. This, according to Mr Kantawala, has resulted in the gross miscarriage of justice inasmuch as the impugned order has been passed in clear breach of the principles of natural justice and is therefore liable to be quashed and set aside. In conclusion, Mr Kantawala submitted that for all the reasons set out earlier the impugned order is unsustainable and ought to be interfered with by us in our extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India. 7. On the other hand, Mr Dwivedi, learned counsel appearing on behalf of the Revenue, whole heartedly supported the impugned order. He submitted that it is an admitted fact that as far as Bill of Entry No.2128700 is concerned, the same was not filed before the issuance of the SCN and therefore Respondent No.4 correctly refused to entertain the Settlement Application filed by the Petitioner. Mr Dwivedi submitted that as per the mandate of section 127B, no Application can be entertained by Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 was filed by the Petitioner (i.e. on or about 7th October, 2015), section 127B read as under :- 127-B. Application for settlement of cases (1) Any importer, exporter or any other person (hereinafter referred to as the applicant in this Chapter) may, in respect of a case, relating to him make an application, before adjudication to the Settlement commission to have the case settled, in such form and in such manner as may be specified by rules, and containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification, under-valuation or inapplicability of exemption notification (or otherwise) and such application shall be disposed of in the manner hereinafter provided : Provided that no such application shall be made unless - (a) the applicant has filed a bill of entry, or a shipping bill, or a bill of export, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hty days from the date of the seizure. 127B(1) gives an opportunity to a person to approach the Settlement Commission to settle a case relating to him before the same is adjudicated and have the same settled. For this purpose, the said person has to make an Application before the Settlement Commission in such form and in such manner as specified by the Rules and containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability is incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by the Rules. Clause (a) of the 1st proviso to sub-section (1) of section 127B clearly stipulates that no Settlement Application shall be made unless the Applicant has filed a bill of entry, or a shipping bill, or a bill of export, or made a baggage declaration, or a label or declaration accompanying the goods imported or exported through post or courier, as the case may be, and in relation to such document or documents, a show cause notice has been issued to him by the proper officer. 11. In the facts of the present case, it is an ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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