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TMI Blog2016 (6) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... ension of general principle of interpretation of statute for deciphering mind of law maker. It was an attempt to discover intention of legislature from language used by it, keeping in mind, that language is at best imperfect instrument for expression of actual human thoughts. Maintainability of application - Held that:- The Bench observes from the SCN that Revenue has not proposed any alternative classification of the goods in the SCN and therefore it cannot be said that the issue before Commission involves ‘interpretation of classification under Customs Tariff Act, 1975” and therefore bar as laid down under proviso to Section 127B(1) would not be applicable to the instant case - the Bench finds that the objections raised by Revenue relating to maintainability of the applications filed by the applicants are not sustainable and hence rejected. The Bench upholds the allegations levelled against Ms. Vihari Sheth and Shri Jiten Sheth in the SCN dated 27-1-2014 relating to premeditated acts to smuggle dutiable goods into the country without payment of appropriate duties, and to facilitate its sale. The Bench holds that the goods totally valued at ₹ 2.45 crores and ₹ 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter she cleared Customs through green channel, the facility meant for the passengers who are not in possession of any dutiable goods. On scrutiny of her Customs Gate Pass it was found that she had not declared to carrying any dutiable goods in her baggage. The personal baggage of the said passenger was searched under panchanama and no dutiable goods were recovered. However, personal search of the said passenger resulted in the recovery and seizure of diamond studded gold jewellery from her upper and lower inner garments. The passenger was also found to be in possession of one new wrist watch of Hublot brand (BIG BANG Edition No. 041/520 Sr. No. 931785) which was also seized under the Customs Act, 1962. The passenger was also found to be carrying 01 Samsung Mobile phone, 01 I-pad, 01 red coloured diary along with few other documents, all of which were taken over under the Customs Act, 1962, for being relevant to inquiry. 2.2 The seized diamond studded gold jewellery was examined by the Government Approved Valuer who valued the seized goods at ₹ 2,45,00,000/-. The details are as under :- Sr. No. Description of the jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24500000 2.3 During the course of investigation statement of Mrs. Vihari Rajesh Sheth (the main applicant) inter alia stated that :- (i) her father Rajesh Sheth, a diamond trader conducts business in the name of House of Gems, Singapore and Vihari Jewels Pte. Ltd., which is also based in Singapore; (ii) she was informed by her father that jewellery showroom was being run in her name at Hotel Grand Hyatt, Mumbai and that she was not aware as to whether her uncle Jiten Sheth was a partner in the said company or the stakes held by her father in the said company; (iii) she admitted to have carried diamond studded gold jewellery from Singapore on 30-7-2013 and to have evaded payment of Customs duty leviable in India; (iv) she had smuggled the jewellery by concealing the same in her inner garments; (v) she had not declared before the Customs, the jewellery being carried by her. 2.4 Mrs. Vihari Rajesh Sheth (the main applicant) was arrested under Section 104 of the Customs Act, 1962 on 1-8-2013 and subsequently granted bail by Hon ble Bombay High Court on 26-9-2013. 2.5 During the course of investigation statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jewellery seized from his showroom was procured by him from a company by name Vir Gems which was owned by one Jitendra Katera; (ii) the seized jewellery was procured by him on different occasions for which 4 separate bills were raised by the supplier; (iii) the delivery was taken by him personally for which no acknowledgement was obtained by Jitendra Katera; (iv) he was not aware as to whether any other jewellery was procured by him from Jitendra Katera; (v) he was neither aware about his residential details of Jitendra Katera nor was he aware about the exact location of his office 2.11 The office premises of Vir Gems situated at 108, Vinod Villa, 66, Cable Cross Lane No. 3, Mumbai was searched and statement of Shri Jitendra Kitavat, proprietor of Vir Gems was recorded wherein, he inter alia stated that :- (i) he had never supplied any jewellery to Vihari Jewels, Rajesh Brothers or Tisya Jewels; (ii) he had issued 4 invoices in the name of Vihari Jewels showing the sale of diamond studded gold jewellery valued at approximately ₹ 1.75 crores on the request of Jiten Sheth; (iii) however no diamond studded gold jewellery was eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) and the submissions made by various persons during the course of investigations also indicate that she appears to have smuggled gold jewellery/diamonds in her previous trips also, which is pending execution. Since Shri Rajesh Sheth and Mrs. Manisha Sheth are yet to join the investigation. 2.14 From the above investigations conducted so far, it appears that :- (i) The applicant Mrs. Vihari Rajesh Sheth was a business women (partner of Vihari Jewels Pte. Limited, Singapore) engaged in the business of trading of diamonds/diamond studded gold jewellery in Singapore. The said business was being operated in the name of Vihari Jewels Pte. Limited in which her mother Mrs. Manisha Sheth was also a partner. She along with her Mumbai based uncle the co-applicant Jiten Sheth had formed a syndicate for carrying out smuggling of diamond studded gold jewellery into India through baggage mode. Her parents (Rajesh Sheth and Mrs. Manisha Sheth) also appears to have played a role, which remains to be investigated. As her parents were based in Singapore and as she had business interests in Singapore, Mrs. Vihari Rajesh Sheth was frequently visiting Singapore. On her return journey to Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai on 8-8-2013, 41 pcs. of unaccounted diamond studded gold jewellery was recovered and seized under the provisions of the Customs Act, 1962. (iii) The said seized goods i.e., 41 pcs. of diamond studded gold jewellery valued at ₹ 2.05 crores appears to have been smuggled by Mrs. Vihari Rajesh Sheth in the past 32 foreign visits made by her. The seizure of unaccounted diamond studded gold jewellery from the showroom of Jiten Sheth corroborates the statement given by him wherein he admitted that he had received on 3 different occasions, smuggled jewellery from Mrs. Vihari Sheth for being sold in his showroom. Further, Jiten Sheth in order to misguide the investigators submitted 04 invoices of Vir Gems, Mumbai claiming that the 41 pcs. of seized jewellery was procured by him from Vir Gems covered vide said invoices. (iv) Jiten Sheth was an active member of the said smuggling syndicate; he was acquiring the smuggled jewellery from Mrs. Vihari Sheth and facilitating the sale of the same in the domestic market through his jewellery showroom situated in Mumbai. He further attempted to create fictitious documents to prove that the diamond studded gold jewellery seized from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the private records and data stored in electronic devices, the investigations is on and would be dealt separately in due course. Further, role of Rajesh Sheth and Mrs. Manisha Sheth is also under investigation, who are yet to join the investigation. Action if any against them would be dealt with separately in due course. 3. Applicant in her application has made the following submissions :- 3.1 The applicant submits that the jewellery from her possession was purchased abroad for her personal use for attending close family friend wedding which was to be held in Delhi from 9-8-2013 to 13-8-2013. Copies of the bill and copy of the said wedding invitation card were submitted during the course of investigation. 3.2 The applicant submits that she had realized her mistake and ought to have declared the goods in Customs Declaration submitted in the provision of Customs Act, 1962 and ought to have paid duty on dutiable goods seized from her possession in accordance with law. She admits that the goods seized from her possession which are meant for her personal use are liable to confiscation. 3.3 The applicant prays for permission to re-export the jewellery [mentioned] in Sr. Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and alleging submission of false invoices, it is not established by any tangible evidence that such jewellery seized from Vihari Jewels, Mumbai was of foreign origin and are carried in India by her. The co-applicant denies that this jewellery seized at Vihari Jewels, Mumbai are sourced from Vihari Jewels Pte. Ltd., Singapore or any foreign company directly or indirectly. 4.2 The co-applicant submits that, since the show cause notice does not quantify duty liability he has self assessed the amount of duty of ₹ 73,97,821/- for filing the application on the basis of valuation purpose by the DRI and has admitted the same as payable, only for the purpose of settlement of the case in true spirit of settlement, without admitting the allegation. An amount of ₹ 2 crores which is much excess of admitted duty amount has been deposited and as the goods has not been released, no interest is hence payable. 4.3 The co-applicant submits that, the jewellery seized is predominantly diamond studded jewellery. Although the goods were seized from the showroom premises of the co-applicant, it is the case of DRI itself that the applicant along with the co-applicant had formed a syndicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Customs Act, 1962 and why penalty should not be imposed upon them under Sections 112(b) and 114AA of the Customs Act, 1962; 6.3 Separate Show Cause Notice F. No. DRI/MZU/C/Inv-08/2013-14, dated 13-1-2015 under Section 124 of the Customs Act, 1962 covering the past consignments was issued to Ms. Vihari Seth and others including nine persons to whom the smuggled jewellery was sold, wherein confiscation of the diamond studded jewellery seized from such nine purchasers, totally valued at ₹ 16,41,45,682/- was proposed. Imposition of penalty on Ms. Vihari Sheth, M/s. Vihari Jewels and Mr. Jiten Sheth was also proposed. 6.4 The present applications, dated 16-6-2015 filed by Ms. Vihari Rajesh Sheth and Mr. Jiten Sheth before the Hon ble Settlement Commission have sought settlement of only the first show cause notice issued on 27-1-2014 which pertains to the seizure of the jewellery on 30-7-2013 from the possession of Ms. Vihari Rajesh Sheth at C.S.I. Airport, Mumbai and the seizure of the jewellery on 7-8-2013 and 8-8-2013 from the showroom of M/s. Vihari Jewels. 6.5 Admittedly, as per statement, dated 1-8-2013 of Shri Jiten Seth, he had on three (3) different occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, using this modus operandi, is clearly evident from various evidences on record which have been duly set out in the above show cause notice. 6.7 It is humbly submitted that the present applications are neither admissible nor eligible for settlement under law, for following reasons : 6.8 The subject goods i.e. diamond studded gold jewellery are covered under Section 123 of the Customs Act, 1962 - Settlement of such goods is barred by Section 127B(1) (i) Section 127B of the Customs Act, 1962 dealing with Application for settlement of cases clearly states in 3rd proviso that no settlement application shall be made under Section 127B(1) 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 has been committed. (ii) Gold and manufactures thereof are covered under Section 123(2) of the Customs Act, 1962. Thus, no settlement application under Section 127B(1) can be filed nor entertained by Settlement Commission in respect of the instant goods which being gold jewellery are covered by Section 123 and hence hit by the exception clause as above. When the law clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in Tata Consultancy Services v. State of A.P. [2004 (178) E.L.T. 22 (S.C.)], has held that : A literal construction would not be denied only because the consequences to comply with the same may lead to a penalty. (para 67) The courts should not be over zealous in searching for ambiguities or obscurities in words which are plain. (para 62) (5) In the Union of India v. Dharamendra Textile Processors [2008 - TIOL-192-SC-CX-LB] = 2008 (231) E.L.T. 3 (S.C.) Supreme Court held that It is well settled principle in law that the Court cannot read anything into a statutory provision or stipulated condition which is plain and unambiguous. The statute is an edict of the legislature. The language employed in the statute is the determinative factor of the Legislative intent. (Para 13) 6.9 In view of the above authoritative judicial pronouncements by the highest Court of the land, there is no scope for reading the prohibitions to settlement application as set out in Section 127B(1) proviso otherwise than what it plainly conveys. It is crystal clear from the language of the third proviso to Section 127B that it expressly forbids making an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggage. Apparently implying that since baggage is not clearly excluded unlike the case of third proviso to 127B(1), it is permissible. 6.12 The Division Bench of the Hon ble High Court of Delhi in the case of Komal Jain v. Union of India [(2014 (304) E.L.T. 675 (Del.)] has observed that : The opportunity to approach the Settlement Commission is a sort of concession given by the Government to errant assessees to enable them to come clean. This opportunity is hedged in by certain conditions, one of which is that the assessee shall pay the additional amount of customs duty accepted by him along with interest due under Section 28AB. The legislative intention, however, appears to us to be otherwise. If one of the many conditions prescribed by the first proviso to Section 127B cannot be complied with, albeit because of statutory disability - even assuming the petitioner is right in its contention that there is a statutory disability in calculating the interest due under Section 28AB - the result would be that such a case was not intended to be covered by the section; it is not open to the petitioner to argue that because of the statutory disability (whatever that may be) one of tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be dealt with separately as they arise out of a common case of smuggling of high end jewellery by Ms. Vihari Sheth. Not only facts, but also evidences relied upon to establish the same are common. Therefore, the two show cause notices cannot be segregated and dealt with separately. Ms. Vihari Sheth and Shri Jiten Sheth have filed applications only for the first SCN and are silent on the second show cause notice. Thus, they have made selective disclosure and have not made full and complete disclosure in respect of the entire case. In fact, they have tried to mislead the Hon ble Commission by artificially separating the proceedings which admittedly is not permissible in the scheme of chapter XIVA of the Customs Act, 1962. The disclosure made by the Applicants is neither complete nor true and full. In view of this, since the entire proceedings pertaining to the applicants are not covered in the subject applications, it cannot be construed as applications for settlement in respect of a case as envisaged under Section 127B of the Customs Act, 1962. 6.15 The Settlement Commission has no jurisdiction and authority to allow re-export of the clandestinely smuggled goods. 6.16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ); the SCN issued proposed absolute confiscation of the seized goods; and gold jewellery was being smuggled by way of concealment. Therefore, the ratio of the Order in the case of Ashok Kumar Jain is not applicable to the case in hand. It appears that the Hon ble Settlement Commission has erred in relying upon the said case as permitting settlement of gold smuggling cases. Examination of the basic facts of Ashok Kumar Jain case reveals that even in that case, the Hon ble High Court in paragraph 9 of the judgment has held that Although provisions relating to baggage fall under Chapter 11 of the Customs Act, 1962, the provisions relating to confiscation-which are invoked in the present case are general in nature and apply to all cases of imports - made either where goods are sought to be cleared under Chapter 7 or under Chapter 6 as in the present case. This observation of the Court is strengthened by the fact that Section 127B itself enumerates the kind of cases which cannot be entertained by the Commission, for instance listed in third proviso of Section 127B(i) (stress provided). Thus, the said judgment has very categorically and unambiguously held in para 11 If parliamentary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e could be settled by Hon ble Commission since disembarkation card as alleged by respondents were submitted but without disclosing correct material particulars - Commissioner of Customs v. Ashok K. Jain - 2009 (247) E.L.T. 893. (iv) Even when no duty demanded in SCN or when the allegations are of misdeclaration/smuggling, such case can also be considered for settlement. Reference was drawn to Komal Jain v. UOI - 2014 (304) E.L.T. 675 (Del.) and UOI v. Hoganas India Ltd. [2006 (199) E.L.T. 8 (Bom.). (v) No incomplete or selective disclosures made by them for not admitting liability for second show cause notice as the respondent had themselves issued two show cause notices. (vi) The Settlement Commission has the jurisdiction and authority to order re-export of the goods. Bharat Hotels Ltd. - Final Order dated 2-3-2012 - Once application allowed to be proceeded with, the Hon ble Commission shall have all the powers vested in officers of Customs under the Customs Act and Rule made thereunder. (vii) Seized goods can be released upon confiscation on payment of redemption fine - following case laws support this view. - A. Rajkumar v. CC (Airpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Eshakali Patanwala - 2014 (314) E.L.T. 854 (GOI) is misplaced where issue was not about definition of diamond or gold jewellery and remarks relating to predominance test can at best be attributed as obiter dicta and no ratio derived from it. - In following cases even though value of gold used in making quartz watches/bracelets were predominant, these were still held as quartz watches. (1) C.C., Mumbai v. Select Impex Ltd. - 2003 (157) E.L.T. 453 (Tri.-Del.) (2) Select Impex Ltd. v. UOI - 2006 (194) E.L.T. 146 (Del.) (3) UOI v. Select Impex Ltd. - 2009 (245) E.L.T. 45 (Del.) - Goods being articles of gold set with diamonds are manufacture of gold to which Section 123 was applicable and hence beyond purview of jurisdiction of Settlement Commission. (1) R.S.Nayak v. A.R. Antulay - AIR 1984 SC 684 (2) Grasim Ind. v. CC, Bombay - 2002 (141) E.L.T. 593 (S.C.) (3) UOI v. Swift Laboratories - 2011 (265) E.L.T. 3 (S.C.) (4) Tata Consultancy Services v. State of Andhra Pradesh - 2004 (178) E.L.T. 22 (5) UOI v. Dharamendra Textile Processors - 2008 - TIOL - 192 SC - CX.LB = 2008 (231) E.L.T. 3 (S.C.) (6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to repeat the application. 7.5 Effective hearing in the matter was held on 26-4-2016. Shri Vikram Nankani, Sr. Advocate, Shri Sanjay Agarwal, Advocate, Ms. Neha Ahuja, Advocate and Shri Jiten Sheth, Co-applicant, appeared on behalf of the applicant and co-applicant. Shri Dhananjan S. Mali, Dy. Director, DRI, Mumbai, appeared on behalf of Revenue. (a) The Ld. Sr. Advocate vehemently submitted that the Settlement Commission has the jurisdiction to settle their case in which goods involved in the seizure were diamond jewellery as distinct from gold jewellery and a Watch seized from the person of the passenger, to which Section 123 of the Customs Act, 1962 is not applicable and therefore are not hit by the bar placed under Section 127B(1)(c) proviso. Arguments made by him can be summarized as under :- (i) The applications filed by them in terms of Section 127B(1) of the Customs Act, 1962 were allowed to be proceeded with on 23-6-2015 which decision has remained unchallenged and thereafter only logical course open is to follow the procedure laid under 127C of the Act to settle their case. (ii) Diamond jewellery as distinct from gold jewellery is not cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing order : No ground is made out for our interference with the impugned orders . (xi) Reliance was placed on the ratio of Kunhayawad v. State of Kerala 200 (6) SLC 359 = 2001 (129) E.L.T. 11 (S.C.) to claim that order passed by Hon ble Supeme Court being a speaking order, the statement of law contained in the Hon ble High Court s order is the declaration of law by the Supreme Court within meaning of Article 141 of the Constitution of India. (b) The Ld. Sr. Advocate sought leave to file a brief summary of his submissions within seven days and also prayed to settle the case since their case is covered by the jurisdiction of Settlement Commission. (c) The representative of Revenue reiterated the submissions already on record vide their report dated 9-3-2016 to oppose the contentions raised on behalf of the applicant. He also sought seven days time to make a written submission. (d) Both the parties were advised to hand over copies of their submissions to the Secretariat and to each other to save time so that their objections if any could be filed within 15 days. 7.6 The applicants made further written submissions, received in the Secretar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try not contemplated. The passenger did submit disembarkation card without disclosing material particulars. (1) Delhi High Court s case in the case of Ashok K. Jain (supra) (2) Komal Jain v. UOI - 2014 (304) E.L.T. 675 (Del.) - Customs duty could be self assessed and paid under Section 124. SCN proposing confiscation. 7.8 Disclosure not selective or incomplete for not admitting any liability for second show cause notice. - Respondent themselves issued two SCNs and therefore it cannot be said that the first SCN could not be dealt with separately. - Reliance on Optigrab case by Revenue misplaced as in the said case application clubbing three cases was rejected as untenable. - Writ petition No. 4524 of 2015, dated 15-6-2015 in their case permitted filing of application for settlement restricted to SCN dated 27-1-2014 whereas permitting seeking adjudication of second SCN. - Although Settlement Commission has the jurisdiction and authority to allow re-export the applicants willing to give up their request for permitting re-export for the purpose of settlement of the case on the entire goods seized in SCN dated 27-1-2014 on the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rebuffed by drawing reference to Hoganas India Ltd. Case s decision 2006 (199) E.L.T. 8 which laid down that the entire approach behind legislation was to unearth frauds and dishonesty. - Reference to Shabbir Eshakali Patanwala case was to show that since predominant part in the value terms is diamond, such jewellery is held as diamond jewellery and not gold jewellery. - As regards Revenue contention on issue of classification, it is reiterated that the goods in the instant case are classifiable under CTH 9803. Duty liability as calculated by them not contested by Revenue. Therefore, there is no contest of classification involved. - Earlier submissions were reiterated and prayers made for settlement of case and grant of immunities. 8. The Bench has carefully gone through the oral and written submissions made on behalf of the applicants and the Revenue. 8.1 Facts of the case that emerge from the SCN and other material records are that the applicant Ms. Vihari Sheth attempted to smuggle goods valued at ₹ 2.45 crores without payment of appropriate Customs duty. Investigations revealed that she belonged to a business family who were running ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and cosmetics and any other goods which the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every notification issued under sub-section (2) shall be laid before both Houses of Parliament, as soon as may be, after it is issued. Pre-amended Section 123 of the Act : 123. Burden of proof in certain cases - (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify. Amended Section 123 of the Act after substitution w.e.f. 26-10-1989 by Section 2 of Act 40 of 1989 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of gold and silver in any form, the value of which should predominantly consist of value of gold or silver as the duty is levied on weight basis and not gold studded with precious stones or pearls because in such as a scenario the predominant partner would be the precious stones or pearls and such jewellery is sold in the market as Diamond jewellery and not gold jewellery . 8.2.4 Revenue contests the above on two grounds first, the observation of the Government in Patanwala s case (supra) was in the nature of obiter dicta which could not be used for classification for taxation purposes and secondly the applicants themselves concede that the diamonds have been set on the base metal i.e. gold which shows the primacy/principal/fundamental component of jewellery was gold. 8.2.5 The Bench is unable to agree with the Revenue s contention for the following reasons (1) The undisputed fact as apparent from the legislative history of Section 123 is that gold, diamonds, manufactures of gold and manufactures of diamonds all four category of goods were covered under the ambit of Section 123(2) till 26-10-1989. (2) On 26-10-1989, amendments were carried out to dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven assuming that the observation of Central Government in Patanwala s case (supra) were of the nature of obiter dicta, as contended by Revenue, and therefore, have no binding effect, these observations have immense persuasive value. 8.3 It has been further contended by Revenue that diamonds having been admittedly set in gold, showing the primary on fundamental character of gold in the jewellery. The Bench is not impressed with this line of argument. Nature of diamond, a precious stone, is such that it has to be studded to a base metal, that does not mean it automatically loses its primacy without any reference to the value of the individual components. 8.4 Reference has also been drawn to classification of diamond studded gold jewellery under CTH 7113 19 30 to press home the point that such jewellery should be treated as manufacture of gold . This view has already been examined and not found acceptable by the Bench in earlier para. Moreover issue before the Bench is not to interpret classification of the goods under the first schedule of the Customs Tariff Act, 1975. 8.5 Number of Court s decision have been cited by the Revenue on the interpretation of statute essentiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of the jurisdiction of the Settlement Commission. It has nothing to do with the eventuality of shifting of burden of proof. It is perhaps because of this reason that the Settlement Commission in the Special Bench judgement in case of Idris Y. Porbunderwala used the expression invocability of the provisions of Section 123 . There is nothing in the 3rd proviso to sub-section (1) to Section 127B which would indicate that it envisaged satisfaction of the conditions for invoking sub-section (1) of Section 123 before the jurisdiction of the Settlement Commission can be ousted. It only refers to the goods to which Section 123 applies. Applicability of Section 123 to the goods and the invocability of the principle of shifting of burden of proof are two independent and distinct issues. Thus, the Settlement Commission correctly applied 3rd proviso to sub-section 91 of Section 127B of the Act. Petitions are therefore dismissed. (See 2016-TI0L-1194-HC-AHM-CUS) 8.6 Besides the jewellery seized from Ms. Vihari Sheth, a new watch was also seized. The applicants contend that what is covered under Section 123(2) is watches and not one watch indicating legislative intent to bring un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities. 8.7.3 The case laws cited by Revenue in support of their contention do not serve their cause as in the Optigrab case (supra) a common application for settlement filed for three show cause notices was rejected by the Hon ble Court and in JSK Indl. case (supra), the applicants sought part settlement of issues arising in one SCN which was not approved of by Hon ble Court which incidentally is not the case here. 8.8 Yet another grounds on which the application is sought to be rejected is that neither any Bill of Entry nor SB was filed by the applicants. The Bench observes from Sh. Ashok K. Jain s case (supra), Suresh Raheja case (supra), Hoganas India case (supra) that the legal position is quite clear that unless there is a specific bar, in the statute all kinds of cases could be settled and there is no specific bar to settlement of baggage cases. Further, the fact that the applicant made Nil declaration relating to material particulars of misdeclaration in her disembarkation would not disentitle her from approaching the Commission if other statutory conditions are fulfilled. In this connection it would be relevant to quote from the recent Hon ble Delhi High Court decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking any interpretation relating to classification under Customs Tariff Act, 1975 since the goods remain classified under 9803. 8.10.3 The Bench observes from the SCN that Revenue has not proposed any alternative classification of the goods in the SCN and therefore it cannot be said that the issue before Commission involves interpretation of classification under Customs Tariff Act, 1975 and therefore bar as laid down under proviso to Section 127B(1) would not be applicable to the instant case. 8.11 In view of the above discussions, the Bench finds that the objections raised by Revenue relating to maintainability of the applications filed by the applicants are not sustainable and hence rejected. 8.12 Coming now to the merits of the case, the Revenue contends that the goods merit absolute confiscation and has cited a few case laws. The Bench finds the cited cases are distinguishable as the goods involved therein were covered under Section 123 which is not the case here as discussed in earlier paras of this order. Therefore, as per Section 125, there is no legal bar to the goods being ordered to be redeemed on payment of fine. 8.13 Revenue has also contended that the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from fine in excess of ₹ 37,50,000/-. 9.2 Goods seized on 8-8-2013 from the showroom totally valued at ₹ 2,05,21,000/- are ordered to be confiscated. However, the Bench grants an option to redeem the same on payment of a fine of ₹ 30,00,000/- (Rupees thirty lakhs only) and duty of ₹ 73,97,821/- (calculated @ 36.05%) and grants immunity from fine in excess of ₹ 30,00,000/-. 9.3 Penalty : (i) The Bench imposes a penalty of ₹ 35,00,000/- (Rupees Thirty five lakhs only) on applicant Ms. Vihari Rajesh Sheth and grants immunity from penalty in excess of ₹ 35,00,000/-. (ii) The Bench imposes a penalty of ₹ 10,00,000/- (Rupees ten lakhs only) on Co-applicant Shri Jiten Sheth and grants immunity from penalty in excess of ₹ 10,00,000/. 9.4 Interest : Interest on the goods seized from the showroom of Shri Jiten Sheth computing from 11-4-2013, the earliest of the last three trips to India by Ms. Vihari Sheth (11-4-2013, 21-5-2013 and 4-6-2013) on duty of ₹ 73,97,821/- till 5-9-2013 when ₹ 2 crores were deposited i.e. for 148 days is settled at ₹ 5,39,940/- (@ 18% p.a.). Interest on the goods seized from Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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