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TMI Blog2022 (7) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... on dismissed. - WRIT PETITION NO. 385 OF 2009 - - - Dated:- 8-7-2022 - K. R. SHRIRAM MILIND N. JADHAV, JJ. Mr. Pradeep Jetly, Senior Advocate a/w Mr. Jitendra B. Mishra and Mr. Dhananjay B. Deshmukh for Petitioner Mr. Prakash Shah a/w Mr. Jas Sanghavi i/b PDS Legal for Respondent No. 2 ORAL JUDGMENT [ PER K.R. SHRIRAM, J. ] : 1. Petitioner Union of India is impugning an order dated 28.07.2008 passed by the Office of the Settlement Commission, Additional Bench, Customs and Central Excise, Mumbai under section 127C (5) of the Customs Act, 1962 ( the Act ). 2. Mr. Jetly stated that petitioner is challenging the impugned order on two grounds:- (a) that no show-cause-notice had been issued and therefore respondents could not have filed application before the Settlement Commission under section 138 of the Customs Act, 1962; and (b) Settlement Commission could not have interpreted classification of the goods under the Customs Tariff Act, 1975. 3. Before we go into the details, as regards the first point, in paragraph 2 of the petition, it is stated the challenge is to the extent that it classifies Motor-home imported by respondent No. 1 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue and non-availability of the Type Approval Certificate. 5. In reply to the application filed by respondent No. 2 with respondent No. 1, petitioner contested the claim of respondent No. 2 and denied that any oral show-cause-notice was issued and also submitted that apart from the claim for 15% trade discount on the invoice value and non-availability of Type Approval Certificate, there was a major issue pertaining to classification which needed to be investigated. The Settlement Commission gave the department seven days time to issue a show-cause-notice. 6. Summons were issued to respondent No. 2 and in the statement recorded, respondent No. 2 maintained that the vehicle was classifiable under CTH 8702 and not 87.03. 7. Respondent No. 1 in its final order dated 28.07.2008, which is impugned in this petition, settled the case for declared duty amount of Rs. 26,38,713/- and imposed fine of Rs. One Lakh on respondent No. 2 for non-submission of Type Approval Certificate. As regards the dispute relating to classification, respondent No.1 found no misdeclaration on the part of respondent No. 2 and held that the vehicle in question was a ten seater and thus classifiable under C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugs and Psychotropic Substances Act, 1985 (61 of 1985) has been committed: Provided also that no application under this sub-section shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975) (3) Every application made under sub-section (1) shall be accompanied by such fees as may be specified by rules. (4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant. (5) Any person, other than an applicant referred to in sub-section (1), may also make an application to the Settlement Commission in respect of a show cause notice issued to him in a case relating to the applicant which has been settled or is pending before the Settlement Commission and such notice is pending before an adjudicating authority, in such manner and subject to such conditions, as may be specified by rules. tariff Act, 1975 (51 of 1975). [Sub-section (2) omitted by Act 25 of 2014, sec. 84(iii). Sub-section (2), before omission, stood as under:- (2) Where any dutiable goods, books of account, other documents or any sale proceeds of the goods have been seized under section 110, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.90 - Other This heading covers all motor vehicles designed for the transport of ten person or more (including the driver), The heading included motor buses and coaches; trolleybuses (obtaining current from overhead wires); and gyrobuses which operate on the principle that kinetic energy can be stored in a high speed flywheel and used to drive an electric generator which supplied current to a motor. This heading also includes motor coaches; convertible into rail-cars by changing the wheels and locking the steering, the motor remaining unchanged. (emphasis supplied) 87.03- MOTOR CARS AND OTHER MOTOR VEHICLES PRINCIPALLY DESIGNED FOR THE TRANSPORT OF PERSONS (OTHER THAN THOSE OF HEADING No. 87.02), INCLUDING STATION WAGONS AND RACING CARS. 8703.10 - Vehicles specially designed for travelling on snow; golf cars and similar vehicles - Other vehicles, with spark-ignition internal combustion reciprocating piston engine: 8703.21 -- Of a cylinder capacity not exceeding 1,000 cc 8703.22 -- Of a cylinder capacity exceeding 1,000 cc but not exceeding 1,500 cc 8703.23 -- Of a cylinder capacity exceeding 1,500 cc but not exceeding 3,000 cc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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