9911796707
TMI Blog2011 (6) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... ignor in Hongkong. The price of the goods under an invoice of 16 September 2008 was US $ 938 per metric tonne. An advance Bill of Entry was filed on 30 September 2008. The transaction between the consignee and the shipper was not completed and according to the First Respondent, the title to the goods remained with the shipper. The First Respondent claims that it negotiated with the shipper who then agreed to sell the goods at a value of US $ 442 per metric tonne. The IGM was allowed to be amended by the Assistant Commissioner and Bills of Entry dated 18 November 2008 and 5 December 2008 were filed. According to the First Respondent, the demurrage charges which were accumulated till the date of the execution of the contract (6 November 2008) were to be borne by it; these being in the total sum of Rs. 1,00,03,752/-. The Bills of Entry filed by the earlier consignee were cancelled by the Assistant Commissioner of Customs. Pending the finalisation of assessment, the imported goods were to be allowed to be released provisionally on the payment of duty on the basis of the higher transaction value of US $ 938 per metric tonne declared by the earlier consignee. 4. Initially, eighty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Commissioner of Central Excise and Customs v. ITC Limited [2006 (203) E.L.T. 532 (S.C.)], while construing the provisions of Section 11A of the Central Excise Act, 1944 which are pari materia to Section 28 of the Customs Act, 1962. 7. On the other hand, it has been urged on behalf of the First Respondent that (i) The First Respondent does not contend that the notice to show cause can be issued under Section 28 of the Customs Act, 1962 in case of a provisional assessment; (ii) The only requirement of Section 127B is that the proper officer has issued a notice to show cause qua the Bill of Entry and Section 127B does not provide that the show cause notice should be issued under Section 28; (iii) Even before finalising a provisional assessment, a notice to show cause is necessary; (iv) By letters dated 23 February 2009 and 31 March 2009, the importer waived the notice to show cause without prejudice to its right to approach the Settlement Commission. The letter of the Assessing Officer requiring the importer to attend a personal hearing can be regarded as a notice to show cause; (v) Neither the Act nor the Rules provide for a particular form for the issuance of a notice to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice has been issued to him by the proper officer". Under proviso (b), another condition is that the additional amount of duty accepted by the applicant must exceed rupees three lakhs, while under proviso (c), it is necessary that the applicant must have paid the additional amount of customs duty accepted by him, together with interest due. Now, in the present case, the contention of the Revenue is that the application filed by the First Respondent was not maintainable both for the reason that no notice to show cause had been issued and for the reason that the First Respondent had not paid the additional amount of customs duty and had not admitted any additional liability. 10. The conditions which have been prescribed by the proviso to sub-section (1) of Section 127 constitute a jurisdictional requirement. In the absence of compliance, there is a threshold bar to the making of the application under Section 127. Absent compliance with the conditions spelt out in the provisos, no application can be made. An applicant cannot invoke the jurisdiction of the Settlement Commission unless the conditions which are prescribed in the proviso are duly fulfilled. In the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the present case is whether a jurisdictional condition which is imposed by the proviso to Section 127-B(1) can be obviated by the applicant contending that he has waived the issuance of a notice to show cause. In our view, the answer to that issue must necessarily lie in the negative. Proviso (a) to sub-section (1) of Section 127 spells out the stage at which an application can be made to the Settlement Commission. An application cannot be filed unless the applicant has filed a bill of entry or shipping bill in respect of the import or export of goods and in relation to such bill of entry or shipping bill a show cause notice has been issued to him by the proper officer. These conditions have to be cumulatively fulfilled and are mandatory. If an application has to be filed to the Settlement Commission, there is no question of the applicant waiving the notice to show cause. Accepting such a contention would defeat the Parliamentary intent. The issuance of a notice to show cause is an important stage and when it is made a jurisdictional requirement - in the absence of which even an application cannot be made - an applicant cannot set up a waiver of such a condition. Parliament ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
