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TMI Blog2021 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... eous finding. The facts on record indicate that petitioner has got substantial relief despite past dalliances of violating law. The petitioner had got habituated of importing refurbished hard disk contrary to the provisions of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 and the provisions of the Foreign Trade Management (Development And Regulation) Act, 1992 - first respondent Settlement Commission has ordered absolute confiscation of the seized goods which were in the custody of the petitioner which were allegedly lost in the fire accident in the petitioner s godown in Bangalore. The goods would have absolutely stood vested with the Government in terms of Section 126 of Customs Act, 1962 if adjudication proceedings were allowed to go on or in the alternative, allowed to be redeemed by the petitioner on payment of redemption fine under Section 125 of the Customs Act, 1962. The order of the first respondent Settlement Commission is a package and it is not a substitute for an adjudication order that would have been passed by an adjudicating authority under the Act. It is for the petitioner to take advantage of it as it is or face the consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscated under Section 111(d), Section 111(m) and Section 111(o) of the Customs Act, 1962 read with Rule 17 of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 read with Section 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rules 11 and 14 of the Foreign Trade (Regulation) Rules, 1993 for importing refurbished goods and for wrong availment of the notification benefit; vi. the impugned goods (other than the refurbished goods mentioned in para supra) seized in the godown premises of the importer at Bangaluru, as detailed in worksheet-II to this notice, totally valued at ₹ 14,72,634/- (Rupees fourteen lakhs seventy two thousand six hundred and thirty four only) should be confiscated under Section 111(m) and Section 111(o) of the Customs Act, 1962 for wrong availment of notification benefit; vii.the impugned refurbished goods seized in the branch premises of the importer at Chennai, as detailed in worksheet-II to this notice, totally valued at ₹ 12,04,605/- (Rupees twelve lakhs four thousand six hundred and five only) should not be confiscated under Section 111(d), Section 111(m) and Section 111(o) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y paid by them during the course of investigation, should not be adjusted towards duty, interest and other adjudications liabilities. 4. The allegation against the petitioner in the Show Cause Notice was that from 2013 onwards, the petitioner had paid lesser amount of additional duty of customs on the imported goods payable under the Central Excise Notification No.12/2012-C.E. dated 17.03.2012 as amended from time to time with effect from 30.04.2015. The total value of consignments imported by the petitioner was estimated as ₹ 7,69,10,673/-. Out of which, on 13.01.2016, a portion of the consignments was seized at petitioner's godown at Bangalore and at Chennai as detailed below:- Place Value Remarks Chennai ₹ 12,04,605/- Refurbished contrary to Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008. Bangalore ₹ 91,93,230/- - do - Bangalore ₹ 14,72,631/- Other than Refurbished 5. During the course of the investigation, the petitioner squared up the duty liability insofar as the short payment of additional duty of customs equivalent to the central excise duty payable under Central Excise Notification No.12/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 111(d), Section 111(m) and Section 111(o) of the Customs Act, 1962 read with Rule 17 of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 read with Section 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rules 11 and 14 of the Foreign Trade (Regulation) Rules, 1993. vi. The impugned goods (other than the refurbished goods) seized from the godown premises of the applicant at Chennai totally valued at ₹ 24,800/- are confiscated under Section 111(m) and 111(o) of the Customs Act, 1962. However, a fine of ₹ 500/- (Rupees Five Hundred only) is imposed on the goods under Section 125 of the Customs Act, 1962 in lieu of confiscation. vii.The impugned refurbished goods imported and cleared by the applicant totally valued at ₹ 7,69,10,763/- at their two godowns were not available for seizure at any point of time, but were contemplated for confiscation under Section 111(d), Section 111(m) and Section 111(o) of the Customs Act, 1962 read with Rule 17 of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 read with Section 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the goods imported contrary to the restrictions were allowed to be redeemed on payment of fine and penalty and exported back under the provision of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 read with Section 11(1) of the Foreign Trade (Development and Regulation) Act, 1992 and Rule 11 and 14 of the Foreign Trade (Regulation) Rules, 1993. In this connection, reference was drawn to the imports made under the following three Bills of Entry and the corresponding Orders-In-Originals :- Sl. No. Bill of Entry Value of Import Order-in-original Redemption fine & Penalty No Date Declared Re-determined No Date 1 3321169 19.09.2013 ₹ 11,54,064/- ₹ 17,86,322/- 23586 16.01.2014 ₹ 1,00,000/- + ₹ 25,000/- 2 3310506 19.09.2013 ₹ 24,12,945/- ₹ 27,73,332/- 23587 16.01.2014 ₹ 1,00,000/- + ₹ 25,000/- 3 2517321 24.06.2013 ₹ 24,70,660/- ₹ 39,26,896/- 17/2016 19.12.2015 ₹ 7,85,000/- + ₹ 1,95,000/- 4 3868705 11.01.2016 ₹ 54,46,134/- ₹ 54,46,134/- 50224/16 28.09.2016 ₹ 3,00,000/- + ₹ 95,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid order was not challenged by the respondent in any forum and, therefore, it became final and conclusive in terms of Section 32-M of the Act, which states that every order of settlement passed under sub-section (7) of Section 32-F would be conclusive as to the matters stated therein subject to the condition that when a settlement order is obtained by fraud or misrepresentation of fact, such an order would be void. According to the said provisions, no matter covered by such order could be reopened in any proceeding under the Central Excise Act or under any other law for the time being in force. Although, subsequently, an application by way of clarification was filed by the respondent, the said application was, however, not entertained. It was held that the said application is misconceived, particularly, in view of the fact that no such issue was raised before the Commission. Since, however, a writ petition was filed by the respondent challenging only the second order of the Settlement Commission and the subsequent letter issued from the office of the appellant, on the basis of which the High Court even proceeded to interfere with the first order passed by the Settlement Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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