TMI Blog2013 (9) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish that the Baggage Declaration Form had at all been filed and if so, by whom and when - Hence, where Baggage Declaration Form was not filed, jurisdiction under Section 127B(1) of the said Act cannot be exercised by the Settlement Commission. The petitioner had not filed any bill of entry so as to satisfy the strict reading of the proviso (a) to Section 127B(1) of the said Act - Commissioner of Customs, Mumbai v/s. Manish Kalvadia [2006 (12) TMI 159 - HIGH COURT OF JUDICATURE AT BOMBAY] - the Settlement Commission would have jurisdiction to settle cases, even in case where no bill of entry had been filed for imported goods, if the same had been cleared under a Baggage Declaration Form - Therefore, the petitioner would be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2013 - - - Dated:- 30-8-2013 - Mohit S Shah And M S Sanklecha, JJ. For the Appellants : Mr Durgesh Khanapurkar along with Mr Anupam Dighe and Ms Karishma Shah i/b. India Law Alliance For the Respondent : Mr J B Mishra JUDGEMENT:- PER : M S Sanklecha In this Petition filed under Article 226 of the Constitution of India, short questions raised is : "Whether the Customs Excise Settlement Commission was justified in rejecting the petitioner's application for settlement under the Customs Act, 1962 (in short "the Act"), merely on the ground that the petitioner had not filed a Baggage Declaration Form?" 2. On 9 June 2011, a show cause notice was issued to the petitioner, demanding the duty of Rs.76.45 lakhs under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or settlement on the ground that the petitioner did not satisfy the condition precedent for entertaining the settlement application as provided under the proviso (a) to Section 127 (B)(1) of the said Act. This was on the ground that the Baggage Declaration Form required to be filed under Section 77 of the said Act, was not filed by the applicant. Thus disentitling the petitioner from making an application for settlement before the Settlement Commission under Section 127(B)(1) of the said Act. 5. Before considering the rival submissions, it would be convenient to reproduce the relevant portion of Section 127(B)(1) of the said Act, which reads as under: "Section 127(B)(1): - Application for settlement of cases: Any importer, exporter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner in support of the petition, submits as under: (a) the case of the revenue in the show cause notice issued to the petitioner is that the said goods had been imported by the petitioner as baggage by professional carriers. In that view of the matter, it was not open to the Settlement Commission to conclude that no Baggage Declaration Form had been filed at the time of import by the carrier to oust the jurisdiction of the Settlement Commission ; (b) the Settlement Commission has itself in other cases allowed settlement in respect of the applicants who had not themselves filed Baggage Declaration Form. In support, reliance was placed upon the decision of the Settlement Commission in the matter of Abu Jani Sandeep Khosla, 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. We have considered the rival submissions. In this case, the petitioner has not filed any bill of entry so as to satisfy the strict reading of the proviso (a) to Section 127B(1) of the said Act. However in the matter of Abu Jani Sandeep Khosla (supra), the Settlement Commission relied upon the decision of this Court in the matter of Commissioner of Customs, Mumbai v/s. Manish Kalvadia, reported in 2008 (228) E.L.T. 342 to hold that the Settlement Commission would have jurisdiction to settle cases, even in case where no bill of entry has been filed for imported goods, if the same has been cleared under a Baggage Declaration Form. Therefore, the petitioner would be entitled to the benefit of Section 127B(1) of the said Act if the Baggag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Declaration Form has been filed cannot be accepted. It is the case of the revenue in the show cause notice that though the said goods have come as baggage, however, no Baggage Declaration Form has been filed, resulting in the said goods being smuggled into India. The import of goods as baggage does not ipso facto mean that Baggage Declaration Form has been filed by the carrier. We note that the Proforma of Baggage Declaration Form as prescribed under Section 81 of the Act has a column for description of goods. Therefore, the submission of the Counsel for the petitioner that the goods are not required to be described in the Baggage Declaration Form, cannot be accepted. In this case, the petitioner has not been able to even establish that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
