TMI Blog2011 (6) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... quest, the Petition is taken up for hearing and final disposal. 2. The Union of India is in a challenge to the validity of an order passed by the Settlement Commission on the ground that a jurisdictional condition for the exercise of powers under Section 127B of the Customs Act, 1962 was not established. The Settlement Commission acting on an application filed by the First Respondent passed a Final Order on 21 December 2010. 3. A company by the name of Vinayaga Marine Petro Ltd., imported a consignment of 2044.17 metric tonnes of Prime non-alloy hot rolled steel coils from a consignor 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. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Respondent had by its communication waived the issuance of a notice to show cause and hence the application was maintainable. 6. On behalf of the Petitioners, counsel submitted that (i) Under proviso (a) to sub-section (1) of Section 127B, the issuance of a notice to show cause is a condition precedent to the maintainability of an application for the settlement of a case; (ii) A jurisdictional condition cannot be waived; (iii) As a matter of fact, no show cause notice can be issued unless the assessment is finalised in view of the law laid down by the Supreme Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars of the dutiable goods in respect of which the applicant admits a short levy inter alia on account of mis-declaration or undervaluation. 9. The proviso to Section 127B(1) stipulates several conditions precedent to the making of an application under the provision. Now, proviso (a) to Section 127-B provides that no such application shall be made unless (a) the applicant has filed a Bill of Entry or a shipping bill, in respect of the import or export of such goods, as the case may be, and in relation to such Bill of Entry or shipping bill a show cause 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 custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollection, is not traceable to Section 28 and is a concomitant power which arises out of the levy of customs duty under Section 12. The Supreme Court held that the requirement of a notice under Section 28 enures to the benefit to the individual concerned, who can waive that right. Virgo Steels having specifically waived its right to the issuance of a notice could not be permitted to turn around and contend that the proceedings initiated against it were void for want of a notice under Section 28. 12. The issue, however, that arises before the Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
