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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 ..... Zonal Unit. The said applications were received in the Secretariat of the Commission on 16-6-2015 and the same have been registered as 'SA (C) 180 & 181/2015' respectively. 2. Specific information received by the Directorate of Revenue Intelligence (DRI), Mumbai Zonal Unit, indicated that a passenger by name Vihari Rajesh Sheth, holding Indian Passport No. Z-2500490 arriving by flight SQ-426 from Singapore at Chhatrapati Shivaji International Airport, Mumbai at around 8.30 hrs on 30-7-2013 was in possession of high value gold jewellery (studded with diamonds) and would smuggle the same into India. The information further indicated that the said passenger had adopted the same modus operandi to smuggle high value jewellery in the past which were sold in the domestic market in Mumbai through the jewellery showroom owned by her family, by name M/s. Vihari Jewels at Hotel Grand Hyatt, Santacruz (East), Vakola, Mumbai. 2.1 Based on the aforesaid information, the said passenger was intercepted on her arrival at CSI Airport, Mumbai on 30-7-2013 after she cleared Customs through green channel, the facility meant for the passengers who are not in possession of any dutiable goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of Mr. Jiten Sheth (the co-applicant) who is the uncle of the main applicant and owner of jewellery showroom Vihari Jewels) inter alia stated that :- (i) he was into manufacturing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 1.75 crores on the request of Jiten Sheth; (iii) however no diamond studd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oom in Mumbai. Vihari Sheth has travelled 32 times in the past (5-3-2011 to 30-7-2013) 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same through his showroom. During the course of search of his showroom Vihari Jewels situated at Hotel Grand Hyatt, Mumbai 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 Rs. 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 showro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Mrs. Vihari Rajesh Sheth on 30-7-2013 at CSI Airport, Mumbai and from the showroom of Vihari Jewels, Hotel Grand Hyatt, Mumbai on 8-8-2013. For the goods smuggled in the past of which there are indication in 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;Co-applicant in his application has submitted as under :- 4.1 The co-applicant submits that the applicant has denied the jewellery seized from. M/s. Vihari Jewels at Hotel Grand Hyatt, in Mumbai is imported by her. Although, acquisition thereof has been doubted by recording the statements 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 Rs. 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 Rs. 2 crores which is much excess of admitted duty amount has been deposited and as the goods has not been released, no interest is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962 and why penalty should not be imposed upon her under Section 112 of the Customs Act, 1962; (ii) Mr. Jiten Sheth and Ms. Vihari Rajesh Sheth were asked to show cause as to why the diamond studded gold jewellery seized from the showroom of Mr. Jiten Sheth on 8-8-2013, valued at Rs. 2,05,21,000/- should not be confiscated under Sections 111(d), (l) and (m) of 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Instead, she had filed 'NIL' declaration. The very fact that the high end jewellery was concealed in the upper and lower undergarments of Ms. Vihari Sheth, and could be recovered and seized only by way of her personal body search, clearly points to the inescapable conclusion that she was seeking to smuggle the jewellery by concealment. The fact that she has been smuggling gold jewellery in the past, 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 Narcot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the legislature is clearly conveyed, there is no scope for court to take upon itself the task of amending or altering the statutory provisions." (Para 8) (3) Hon'ble Supreme Court has again in Union of India v. Ind-Swift Laboratories Ltd. [2011 (265) E.L.T. 3 (S.C.) = 2012 (25) S.T.R. 184 (S.C.) held : "A taxing statute must be interpreted in the light of what is clearly expressed. It is not permissible to import provisions in a taxing statute so as to supply any assumed deficiency...." (para 19) (4) Hon'ble Supreme 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 Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unduly enlarged." The Court has also held that when the applicant seeks to avail benefit of settlement, the provisions of Sections 127A and 127B are to be strictly construed. There is no force in the contention of the Learned Counsel for the appellant that the provisions are to be liberally construed", (para 26) (3) The Hon'ble High Court of Delhi in the case of Commissioner of Customs v. Ashok Kumar Jain [2013 (292) E.L.T. 32 (Del.)] has ruled that : "if parliamentary intention is to exclude adjudication by Customs Authorities in respect of baggage claim, from the purview of the Commission's Jurisdiction, surely such intention would have been more clearly manifested like in the case of 3 proviso of Section 127B(i)" (para 11). 6.11 Above decision was in the context of Baggage. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g before an adjudicating authority on the date on which an application under sub-section (l) of Section 127B is made". (ii) The current application is an off-shoot of investigations in which two show cause notices were issued -- one pertaining to live initial seizures and another concerning the past smuggling of similar high end gold jewellery. The first SCN dated 27th January, 2014 pertains to the seizure of diamond studded gold jewellery and other high end goods from Ms. Vihari Sheth at the Mumbai International Airport on 30-7-2013 as well as those gold jewellery seized on 8-8-2013 from the showroom owned by her paternal uncle Shri Jiten Seth. The second SCN dated 13-1-2015 was issued on completion of detailed investigations covering the past instances of smuggling by Ms. Vihari Sheth. Both these SCNs are complementary and cannot 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 appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) E.L.T. 32 (Del.)]. However, perusal of the Order in the case of Ashok Kumar Jain reveals that facts of the said case are clearly used out of the context. The judgment of the Hon'ble High Court was in the context of baggage. In fact, the judgment categorically says that if baggage were to be excluded, then it would have been mentioned in Section 127B(i) proviso. Further, in the said case, the applicant had declared in the prescribed form of Disembarkation card (Customs Gate Pass), value of the goods carried by him as Rs. 12,000/- which on verification, was found to be more than Rs. 30,00,000/-. Also, in the said case, the SCN had demanded duty on the seized goods and did not propose absolute confiscation. The facts in the present case are different inasmuch as the passenger did not declare anything (declaration in the Customs gate Pass was 'NIL'); 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants along with list of case laws were filed and copies submitted to Revenue on 18-8-2015. 7.1 The contention raised therein by the applicant and the co-applicant could be summarized as under :- (i) Section 123 of the Customs Act, 1962, not applicable since the goods are 'manufactures of diamond' which stand denotified from 26-10-1989. Legislative history of Section 123 ibid was given. (ii) Central Government in their order in Shabbir Eshakali Patanwala case held that if precious stones are predominant such jewellery would be sold as diamond jewellery and not gold jewellery and the goods involved are diamond jewellery in their case, both as per value and applying common parlance test as per cited case. (iii) Even when no Bills of Entry were filed, since there are no provisions to do so for passengers coming from abroad, the case 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2015 ordered - "We are informed by the Learned Counsel for the parties that a new Bench of the Settlement Commission has been constituted which shall be hearing the matter on merits. We have also been informed that the Chairperson of the Principal Bench of the Settlement Commission has passed an order on 10-11-2015 in which there are certain observations with regard to the maintainability and merits of the matter. We direct that the Bench which has been constituted shall decide the case both on maintainability and merits without being influenced by any observations made in the order dated 10-11-2015. The writ petition stands disposed of." 7.4 Revenue vide their letter dated 9-3-2016 re-submitted their submissions which are reiteration of their earlier submission dated 23-7-2015 and can be summarized as under :- - Facts and averments in the SCN were reiterated. - Seized goods are ''gold jewellery studded with diamonds". Such goods regularly imported by the trade in India under Tariff Item 7113 19 30 of CTA 1975. Nature of goods would not change with the mode of import and they would remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 300 (Ker.) (3) Alyakannu v. Commissioner of Customs - AIR Chennai 2009 (247) E.L.T. 21 (Mad.) - From the facts of case and statements recorded by the concerned persons, it was obvious that it was conscious and premediated attempt to smuggle the goods, coming on top of 32 short visits in past over two years despite being fully aware of Customs Laws by resorting to concealment and filing NIL declaration on her arrival, such a covert act of smuggling when exposed could not be allowed to be undone by way of settlement by allowing re-export. - Incomplete and selective Disclosure. "Case" is defined under clause (b) of Section 127A of the Customs Act, 1962. The current application is an offshoot of investigations in which two SCNs were issued, one for seizures of live imports and the other for past instance of smuggling, both of which are complementary and could not be segregated. The application filed for only one SCN, remaining silent on the second SCN. Thus not made true and complete disclosure. (1) Mars Therapeutics & Chemicals Ltd. v. CES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer thereof) watches and any other class of goods". (iii) Reliance was placed on Shabbir Eshakali Patanwala - 2014 (314) E.L.T. 854 (401) case to press home the point that it was the predominant value test which determines whether the jewellery would be known as gold jewellery or diamond jewellery. (iv) Reliance was placed on Shrenik J. Kothari v. CC, Madras - 2003 (161) E.L.T. 1177 (T-Chennai) to claim that Section 123 was not applicable to diamonds after the amendments to Section 123. (v) Section 123 refers to 'Watches' whereas in the instant case, panchnama confirms that there was only one watch which the pax was wearing and her diary shows that this watch was owned by the passenger Ms. Vihari Sheth since 2012 and therefore was a part of bona fide baggage to which Settlement Commission had jurisdiction. 2013 (292) E.L.T. 32 (Del.) - Commissioner of Customs v. Ashok K. Jain. (vi) Even if for the sake of discussion if it is assumed that Section 123 was applicable to the goods involved in the case, there are two sets of Hon'ble High Court decisions which are contrary to each other. (vii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; Beneficial legislation should not be construed too rigidly as it was for the protection of certain class of persons. Mandhana Dyeing v. UOI - 2010 (251) E.L.T. 481 (Bom.) - Non-applicability of Section 123. - Goods involved are "manufacture of diamonds" and not "manufacturer of gold". - Reliance placed on "Shabbir Eshakali Patanwala - 2014 (314) E.L.T. 854". As per valuation report obtained by DRI the value of diamonds is pre-eminent (more than 80% of value). Therefore, predominance value test as well as common parlance test both require the same to be treated as "manufacture of diamonds" and not "manufacture of gold". - Diamonds being such, these require base metal for studding. Regarding classification, Revenue's reference to CTH 7113 19 30 to contend that di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 value proposed to the SCN. So if re-export not being allowed, goods be allowed to be cleared on payment of duties. - Goods could be released on payment of redemption fine. Case laws are not been reproduced. On the basis of above submissions, prayers were made to settle their case. 7.9 Revenue gave their comments on 8-6-2016 which could be summarized as under. - Ratio of Mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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 Rs. 2.45 crores without payment of appropriate Customs duty. Investigations revealed that she belonged to a business family who were running jewellery business in Singapore and India in collaboration with their close relatives and she was undertaking sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : "123. Burden of proof in certain cases. - (1) Where an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to allow import 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age is at best imperfect instrument for expression of actual human thoughts. Even 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 127B incorporates the applicability clause of Section 123 for the ouster 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est/fine/penalties on the values adopted by Revenue in the SCN subject to usual immunities. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Jiten Sheth's shop premises were smuggled in as baggage. The applicants are not seeking 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 good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y thousand only) and duty of Rs. 88,32,250/- (calculated @ 36.05%) and grants immunity from fine in excess of Rs. 37,50,000/-. 9.2 Goods seized on 8-8-2013 from the showroom totally valued at Rs. 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 Rs. 30,00,000/- (Rupees thirty lakhs only) and duty of Rs. 73,97,821/- (calculated @ 36.05%) and grants immunity from fine in excess of Rs. 30,00,000/-. 9.3 Penalty : (i) The Bench imposes a penalty of Rs. 35,00,000/- (Rupees Thirty five lakhs only) on applicant Ms. Vihari Rajesh Sheth and grants immunity from penalty in excess of Rs. 35,00,000/-. (ii) The Bench imposes a penalty of Rs. 10,00,000/- (Rupees ten lakhs only) on Co-applicant Shri Jiten Sheth and grants immunity from penalty in excess of Rs. 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 Rs. 73,97,821/- till 5-9-2013 when Rs. 2 crores were deposited i.e. for 148 days is settled at Rs. 5,39,940/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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