TMI Blog2008 (11) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... for short) by which the Commission has rejected the petitioner's application for settlement, filed under Section 127B of the Customs Act, 1962 (Act, for short). 2. Some facts are required to be stated to dispose of the petition. The petitioner, a Singaporean national and one Shri N.B. Dichwalkar, an Indian national, arrived at Dabolim, Goa on 15-5-2000 by Air India Flight No. 860. As per the petitioner, the petitioner declared 7 packages on the baggage declaration form which was processed and which is evident from the noting appearing on the reverse of the said baggage declaration form. The Officers of the Customs levied a duty of Rs. 1,19,340/- payable by the petitioner on 7 packages and a receipt No. 33382 dated 15-5-2000 was issued to the petitioner. The petitioner allowed his co-passenger to put the packages on the trolley and take them out as he waited for one of the packages which had not come and after the petitioner came out the petitioner understood from his friends that the Directorate of Revenue Intelligence (D.R.I., for short) had taken the co-passenger to their office, and, as the inquiry would take a little lime, the petitioner returned to Singapore and after his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ojectors and accessories were declared by the petitioner which were processed and shown on the reverse of the said declaration form, and the said packages which were brought weighed 182 kgs. and the correspondence carried out by the DRI confirms that there were 7 packages weighing 182 kgs., and except the said 7 packages no other goods were booked by the petitioner. The petitioner had paid excess freight at Singapore on the said packages. It is the case of the petitioner that it was contended by the Revenue before the said Commission that the duty of Rs. 1,19,340/- paid by the petitioner did not relate to the goods seized by respondent no. l's officers and the order records that the goods were seized at the entrance of the airport and both the findings to that effect are based on no evidence. It is the case of the petitioner that the said packages were booked by the petitioner and carried by the petitioner as his baggage to Goa and the documents on record clearly indicate that the goods contained in the said 7 baggages were declared by the petitioner and it is the case of the Customs that the goods sent out were put in Maruti van and thereafter the said van was intercepted and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the DRI the goods declared were: (1) one JVC Flat T.V., (2) one Sony Flat T.V., and (3) two Sony projectors while the goods seized were: (1) one JVC Plasma Display Monitor, (2) one Sony flat Panel Monitor, (3) one Sony Beta cam VCP, (4) one ASK LCD Projector, (5) two Panasonic LCD Projectors, (6) one Kodak Slide Projector (7) one Epson Slide Projector, and (8) assorted accessories, and these facts were brought to the notice of the Commission leading to the observation that there was no co-relation between the goods seized and the goods declared. It is stated that the DRI had told the Commission that the petitioner had remained inside the airport after sending the goods out along with the said Shri N.B. Dichwalkar and as an afterthought, after the goods were detained out side the airport, had declared part of the goods which were not in his possession and paid duty thereon, It is stated that the stand of the DRI in the show cause notice as well as before the Commission is consistent with the facts supported by the documentary evidence and the contention of the petitioner that he had shown the goods seized by DRI to the Customs for assessing the duties is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a provision in law for a settlement with the tax payer at any stage of the proceedings and a provision of this type would facilitate settlement in individual cases and will give an advantage over general disclosure schemes that misuse thereof would be difficult and the disclosure would not normally breed further tax evasion so that each individual case can be considered on its merits and full disclosures not only of the income but of the modus operandi of its build-up can be insisted on, thus sealing off chances of continued evasion through similar practices. 7. Section 77 of the Act requires a declaration to be given by the owner of any baggage for the purpose of clearing it. It contemplates a declaration of its contents to the proper officer. Section 127B deals with application for settlement of cases and Section 127C deals with the procedure to be followed before rejecting or allowing the application. This Section requires the Commission to call for a report from the Commissioner of Customs having jurisdiction and on the basis of the materials contained in such report and the circumstances of the case or the complicity of the investigation involved therein to decide the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (1) of Section 123 provides 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- (a) in a case where such seizure is made from the possession of any person,- (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. Sub-section (2) of Section 123 further provides that this Section shall apply to gold and manufactures thereof, watches and any other class of goods which the Central Government may by notification in the Official Gazette, specify. 9. A perusal of Section 127B of the Act, particularly the first and third provisos thereof shows that two of the requirements, which would be relevant for our purpose, which were required to be met for an application to be considered by the said Commission are (1) that the applicant had filed a bill of entry in respect of the goods im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohan v. Commissioner of Customs [2008 (222) E.L.T. 344 (Mad.)]. 11. On the other hand, Shri J. Vaz, learned Central Government Standing Counsel, on behalf of respondent nos. 1 and 3, contends that in order to avail the benefit of Section 127B of the Act it is necessary that a declaration under Section 77 of the Act should have been filed making a truthful disclosure of the contents of the baggage imported or brought in. Learned Counsel further submits that this is a case of smuggling and therefore the benefit of Section 127B could not have been given to the petitioner and that the petitioner paid duty only in respect of the contents of one package and not the others which were seized by the DRI, outside the airport, from the possession of the said Shri N.B. Dichwalkar. 12. We are unimpressed with the submissions made on behalf of the petitioner. It can be seen from the Order dated 10-6-2005 of the Commissioner of Customs and Central Excise, which has now attained finality, that the said N.B. Dichwalkar, though found in possession of the goods seized did not claim the said goods nor did he categorically state that they belonged to or were imported by the petitioner. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses." 13. One of the cases which were considered by the Division Bench in Bipin H. Badani v. Union of India and others (supra), we are told, was a case of Sanjay B. Chawan who had otherwise filed a declaration but had not properly declared the goods and it was conceded before the Commission that his application had fulfilled the conditions of Section 127B of the Act. The learned Division Bench while considering the extent of jurisdiction of the Commission to consider the cases under Section 127B of the Act observed that: "with regard to the above contention it is the main contention of the learned Counsel Mr. Rana that the Settlement Commission has a limited jurisdiction as per Section 127B of the Customs Act, in the sense that only the cases of misclassification or such similar cases including the wilful misclassification wherein the notice under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a remedial measure by way of a Settlement Commission and accordingly Chapter XIV-A was provided. Another aspect to be noted is that the entire scheme under Chapter XIV-A as enumerated hereinabove clearly indicate that the Settlement Commission has been given very wide powers to settle the matter. It has also been given the widest discretion including the power to declare the settlement to be void with a power to direct de nova adjudication. Ample power is given to the Settlement Commission to protect the interests of the revenue and even with regard to the grant of immunity from prosecution and penalty. However, as indicated hereinabove the Settlement Commission does not grant immunity as a matter of course. It has discretion to grant immunity in a given case. Even if it were to grant immunity, the Settlement Commission can always impose conditions while doing so. The Settlement Commission has power even to attach the properties of the Applicant to secure the interest of the Revenue during the pendency of the proceedings before him, which power even the adjudicating authority does not have. As rightly pointed out by the learned Counsel appearing for the private parties, the Settlem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, having regard to the entire structure Chapter XIV-A we are very clear in our mind that the Settlement Commission has jurisdiction to entertain all kinds of applications for settlement, provided they satisfy the mandatory requirements of filing the Bill of Entry/Shipping Bill and issuance of a show cause notice in relation to such a Bill of Entry/Shipping Bill and by making a full and true disclosure of a duty liability which was not disclosed earlier before the proper officer and the manner in which such liability has been incurred and the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification or otherwise of goods. These are the essential requirements for making an application under Section 127-B of the Customs Act, which are also clear from the wording of the very section as well as from the particulars to be given in the Form prescribed by the Department, as we have indicated herein above". 14. The case of V.C. Mohan v. The Commissioner of Customs (supra) is again clearly distinguishabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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