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TMI Blog2020 (3) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... nd rendered a speaking order on this issue. All the impugned orders of the Settlement Commission is set aside and the matters remitted back to its file - petition disposed off. - W.P. Nos. 1004, 1821, 1535 & 3053-3055 of 2009 and M.P. Nos. 1, 1, 1, 1, 1 and 1 of 2009 & 1, 1 and 1 of 2011 - - - Dated:- 30-9-2019 - Dr. Anita Sumanth, J. Shri B. Satish Sundar, for the Petitioner. Shri T. Pramod Kumar Chopda, Senior Standing Counsel and Rajasekar, for the Respondent. ORDER This batch of writ petitions can be divided into two sets (i) W.P. Nos. 1004, 1821, 1535 and 3055 of 2009, and (ii) W.P. Nos. 3053 and 3054 of 2009. A common order is passed in both sets of matters since the material factual as well as legal position in all writ petitions is more or less similar. 2. Heard the submissions of Mr. B. Satish Sundar, Learned Counsel for the petitioners, Mr. T. Pramod Kumar Chopda, Learned Senior Standing Counsel for the respondents in W.P. Nos. 1821, 1004, 1535 of 2009 and Mr. Rajasekar, Learned Counsel for the respondents in W.P. Nos. 3053 to 3055 of 2009. 3. The facts that arise for determination in W.P. No. 1004 of 2009 are taken to be representative of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as he had purchased the subject Toyota Prado vehicle in the guise of lease agreement. He had by his such acts as discussed at Para 13(F) supra rendered the subject vehicle liable to confiscation under Section 111(o) of the Customs Act, 1962. As per the provisions of Section 125(2) of the Customs Act, 1962. Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods . In the case of Commissioner of Customs (Import), Mumbai v. Jagdish Cancer Research Centre - 2001 (132) E.L.T. 257 (S.C.), the Supreme Court has also observed that the duty is recoverable under Section 125(2) of the Customs Act, 1962 from the owner of such goods. In view of above the Customs duty short-paid to the tune of ₹ 3,50,383/- is required to be recovered from Shri Krishna Ashtekar along with the interest. The penalty under Section 112/114A is also required to be imposed on him. 16. Now therefore, - 1. Shri Kottaiyil Ahmmed, Shri Haren Choksey and Shri Krishna Ashtekar are hereby called upon to Show Cause to Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar in terms of Section 127B was cited against the petitioner. The notice stated that if no written reply was received or if the discrepancy was not rectified within seven (7) days, the Commission would be at liberty to decide the matter on the basis of the materials contained in the application. 9. Thereafter, the petitioner, vide reply dated 21-3-2008, reiterated that all criteria for settlement of the matter, including maintainability of the application, had been met by it and that the application contained a full and true disclosure of all relevant material. According to the petitioner, the interest under Section 28AB could only be demanded from the importer and not the petitioner. Reliance was placed, in this regard, on an order of the Bombay Bench of the Settlement Commission dated 7-1-2008 (Final Order No. 4/Cus/RKT/2008) to the effect that the applicant, being a subsequent purchaser, could not be construed to be an importer and hence would not suffer liability to interest. There was no further communication or order from the Commission and the application is thus deemed to have been held to be maintainable. 10. The application came to be listed thereafter for final h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest, had been raised by way of a query by the Registry of the Settlement Commission even at the first instance, on 17-3-2008, and had been answered by the petitioner. In its response to the defect memo, the petitioner had argued that the petition was maintainable and that there would be no liability to interest, on merits. Reliance had been placed by the petitioner even at that juncture on the decision of the Mumbai Bench of the Settlement Commission dated 7-1-2008 in the case of Puneet Bhatia. It was only thereafter, and upon consideration of response dated 21-3-2008 that the application for settlement had been listed for final disposal. 14. No order in terms of Section 127C(1) has been passed in this matter, rejecting the application at the threshold. However, as the application has been allowed to be proceeded with for final hearing, it is deemed to have been admitted in terms of the proviso to Section 127(1). The legal and logical result of this sequence of events is that the application has been found to be proper and maintainable, the SC presumably being satisfied prima facie with the explanations offered at that stage. No doubt, the question regarding payment of inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to submissions on the merits of the matter including case law referred to. The legal issue of liability of a purchaser to interest in terms of Section 128AA of the Act is kept open to be decided in some other case. 19. As far as the respondents in W.P. Nos. 3053 and 3054 of 2009 are concerned Mr. Rajasekar, Learned Counsel appearing for these respondents, fairly states that the impugned order rejecting their applications for settlement passed by the Settlement Commission is on the erroneous basis that the petitioner had approached the Commission even earlier in relation to the same cause of action. He states that this understanding is factually incorrect and that the matter may be directed to be heard by the Commission de novo. 20. Recording this submission, W.P. Nos. 3053 and 3054 of 2009 are allowed. 21. In fine, I set aside all the impugned orders of the Settlement Commission and remit the matters back to its file. Let the parties appear before the Commission on Friday, the 25th of October, 2019, by which time the interest payable in each case shall be computed by the Department and communicated to the petitioners for remittance by them. Upon satisfying itself that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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