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TMI Blog2010 (10) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... passenger, under Section 111(l) and 111(m) of the Customs Act, 1962. However, the Commission permitted these goods to be released on payment of a token fine of Rs. 1 lakh in lieu of confiscation; (d) Granted immunity to the applicant Shri Suresh L. Raheja and to the other co-applicants from penalty and prosecution under the Act as applicable. 2. Shorn of unnecessary details, the facts necessary to be cited for adjudication of the above Petition can be stated thus :- The genesis of the matter reaching the Settlement Commission lies in the fact that on 8-6-2005, the Customs Air Intelligence Unit, CSI, Airport, Mumbai on a specific information intercepted two passengers viz. Suresh Raheja and his wife Smt. Meena Raheja at the Customs Exit Gate of Terminal IIA Arrival Hall, C.S.I. Airport, Sahar, Mumbai. The said two passengers had arrived from London by Jet Airways flight No. 9W 117. The said two passengers had opted for Customs clearance through the Green Channel. Though initially they denied that they were carrying any dutiable goods, but on persistent questioning, Suresh Raheja disclosed that he had purchased a watch worth Great Britain Pounds 3500 and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand draft of Rs. 5,00,000/- as a pre-deposit against the duty, fine penalty, if any, in respect of the goods seized. It appears that on 13-6-2005, further statement of Suresh Raheja was recorded under Section 108 of the said Act, in which statement he stated that he would produce documentary evidence with regard to the detained jewellery. The said detained jewellery was valued at Rs. 3,00,000/- by the Customs Appraiser under a panchanama, in presence of the said Suresh Raheja and his associate and in presence of two independent witnesses. Further statement of the said Suresh Raheja was recorded on 17-6-2005 wherein he accepted the valuation of detained jewellery at Rs. 3,00,000/- and further admitted that he and his family members had taken foreign currency totalling Euros 7,000/-, Great Britain Pounds 18,310/- and UAE, Dirhams 1000/-. The statements of Ashish and Rahul were also recorded wherein they had gone to abroad and had returned on 7-6-2005 and 1-6-2005 respectively. It appears that Suresh Raheja vide his letter dated 17-6-2005 addressed to the Joint Commissioner of Customs, AIU, claimed that the seized Techno Marine Watch was worn by him and that all the items seized w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new articles in accompanied baggage. The goods in excess of Rs. 25,000/- attract Customs duty @ 35% in terms of notification No. 136/90 Customs dated 20-3-1990 & Education Cess of 2% on the amount of Customs duty as per notification No. 69/2004 Customs dated 9-7-2004. Para 32 :- From the foregoing it is evident that Shri Suresh L. Raheja and Smt. Meena S. Raheja had imported duitable goods and had failed to declare the same to Customs on arrival as required under Section 77 of the Customs Act, 1962 with an intention to evade Customs duty leviable on the said goods. Further both Shri Suresh L. Raheja and Smt. Meena S. Raheja admitted the non-declaration, possssion, carriage, recovery and seizure of the goods from their baggage and also that they had declared their baggage through green channel. Shri Sureh L. Raheja and Smt. Meena S. Raheja have travelled abroad many times before and should have been aware/fully conversant with the quantum of free allowance admissible to them and also should have known that goods collectively worth more than Rs. 25,000/- is chargeable to duty. Further it is also seen that the value of certain goods brought by them are individually worth more than R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Act. The Settlement Commission by the common impugned order dated 20-2-2006 allowed the said Applications. In view of the ground raised by the Department of the non-maintainability of the Applications under Section 127(B) of the said Act, the Settlement Commission recorded a specific finding that the applicant fulfils all the conditions laid down in Section 127(B)(1) of the Act and, further recorded that it accordingly allows all the applications to be proceeded with under Section 127(C)(1) of the Act. The Settlement Commission also recorded a statement of the learned counsel appearing for the Respondents that the goods other than the watch and the studded gold jewellery are already destroyed in the deluge and that the case should be finally disposed of. The Settlement Commission, therefore, directed to settle all the cases under Section 127(C)(1) of the Act on the following terms and condition :- Customs duty : The Customs duty in the case is settled at Rs. 7,64,952.82/-. The applicant has already deposited an amount of Rs. 5,00,000/-. The applicant shall pay the balance amount within 30 days of receipt of this order and submit proof thereof to the Commission and the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to have seen that since no Bill of Entry was filed, the Applications were not maintainable under Section 127B of the Act; (b) That the Settlement Commission totally mis-interpreted the judgment of this Court in Writ Petition No. 2430 of 2004 [2006 (201) E.L.T. 529 (Bom.)] and further erroneously relied upon the cases of Shri Mahesh Raj [2001 (131) E.L.T. 707 (Sett. Comm.)] and Anil Prasad Nanda; (c) That the Settlement Commission ought to have seen that the provisions of Section 123 of the said Act were applicable to the seized wrist watches; (d) That the Settlement Commission erred in not appreciating the fact that applicant had failed to discharge the burden of proof cast under Section 123 of the said Act; (e) That the Settlement Commission ought to have rejected the Applications as hit by 3rd proviso to Section 123(1) of the said Act. 6. Submissions on behalf of the Respondents : (i) That the Appellant could not invoke Section 123 of the said Act as the same has not been invoked in the show cause notice; (ii) That the watch is a personal effect for the purposes of the Baggage Rules, 1998 and, therefore, two watches brought by the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Consideration : 7. We have heard the learned counsel for the parties and have bestowed our anxious consideration to their rival contentions. 8. It is an undisputed fact that in the present case, in the show cause notice there is no mention of Section 123 of the said Act and, therefore, the said provision has not been invoked by the Customs Authorities against the Respondents. It is further required to be borne in mind that in so far origin of the goods is concerned, there is no dispute in respect of both the jewellery as well as the watches. Therefore, the contention of the Petitioner that the Respondents had failed to discharge the burden cast by Section 123 of the said Act is mis-founded. Once the origin of the goods was not in dispute, the Respondents as held by the Settlement Commission were entitled to invoke the jurisdiction of the Settlement Commission and, therefore, the bar contained in the proviso to Section 127B could not have come in their way. The finding of the: Settlement Commission in the aforesaid factual background that the Respondents herein, who were the Applicants before the Settlement Commission, fulfill all the conditions laid down in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the case under Section 127C(1) of the said Act by directing payment of duty in the sum of Rs. 7,64,952.82 with simple interest at 10% p.a. and fine of Rs. 1,00,000/- in lieu of confiscation. The Settlement Commission, however, granted immunity to the Respondents from penalty and prosecution. 9. After the impugned order came to be passed on 20-2-2006, the Respondents herein tendered the balance of the amount of the duty payable i.e. Rs. 2,64,952.82 and Rs. 1,00,000/- as also Rs. 34,010/- i.e. interest payable by three separate pay orders. The said pay orders were initially not accepted by the department, however, after some correspondence, the Respondents tendered three fresh pay orders in favour of the Commissioner of Customs, AIU, Mumbai as requested by the Petitioner by letter dated 17-7-2006. It appears that the Petitioner has accepted the said pay orders and realised the proceeds of the said pay orders. Thereafter the Respondent No. 1 colled upon the Petitioner vide his letter dated 8-8-2006 addressed to the Joint Commissioner, Customs, to release the goods as per the order of the Settlement Commission. The Assistant Commissioner of Customs vide his letter dated 19-8-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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