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The Additional Commissioner of Customs Versus Shri Ram Niwas Verma

2015 (9) TMI 197 - DELHI HIGH COURT

Application for Settlement – Bar as per section 127B(1) and 123(2) – Revenue contended that application filed by respondent for settlement of its case could not have been entertained by Settlement Commission because there was express bar contained in third proviso to Section 127B(1) of Customs Act, 1962 – Held that:- plain reading of third proviso to Section 127B(1), it is evident that no application for settlement can be made if it relates to goods to which Section 123 applies – Section 123(2) .....

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te bar as per Section 127B(1) read with Section 123 – For all said reasons, impugned order passed by Settlement Commission is without jurisdiction and is set aside – Decided in favour of revenue. - W. P. (C) 7363/2014 & CM 17221/2014 - Dated:- 25-8-2015 - Badar Durrez Ahmed And Sanjeev Sachdeva, JJ. For the Petitioner : Mr Satish Kumar For the Respondent : Mr Sanjeev Malhotra JUDGMENT Badar Durrez Ahmed, J (Oral) 1. This writ petition is being filed by the Revenue seeking the quashing of the ord .....

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the third proviso to Section 127B(1) of the said Act. 3. Before we examine that, it would be necessary to point out that the respondent had, as part of his baggage, brought into India 6452.600 gms of gold. He did so on 16.06.2013 while arriving at the Indira Gandhi International Airport, Delhi from Dubai by flight No. EK-514. While the respondent was trying to cross the green channel, a Customs Officer intercepted him and on being asked by the Customs Officer as to whether he carried any dutiabl .....

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us proceedings took place and a show cause notice was issued etc. We are not concerned with the rest of the details. 4. The respondent made an application, purportedly under Section 127B of the said Act, on 12.11.2013. The Settlement Commission, after going through the various steps, passed the impugned order dated 16.05.2014 under Section 127C(5) of the said Act. 5. As point out above, the issue raised by the learned counsel for the petitioner/ Revenue is that the respondent could not have move .....

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this Chapter) may, in respect of a case, relating to him make an application, before adjudication to the Settlement Commission to have the case settled, in such form and in such manner as may be specified by rules, and containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be speci .....

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ng the goods imported or exported through post or courier, as the case may be, and in relation to such document or documents, a show cause notice has been issued to him by the proper officer; (b) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and (c) the applicant has paid the additional amount of customs duty accepted by him along with interest due under Section 28AA: Provided further that no application shall be entertained by the Settleme .....

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the Customs Tariff Act, 1975 (51 of 1975). (1A) xxxx xxxx xxxx xxxx (2) xxxx xxxx xxxx xxxx (3) xxxx xxxx xxxx xxxx (4) xxxx xxxx xxxx xxxx (underlining added) 6. Section 123 of the said Act is also relevant. The same is reproduced herein below:- 123. Burden of proof in certain cases.-(1) 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 whe .....

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may by notification in the Official Gazette, specify. (underlining added) 7. On a plain reading of the third proviso to Section 127B(1) of the said Act, it is evident that no application for settlement can be made if it relates to goods to which Section 123 applies. Section 123 sub-section (2) specifically provides that the said Section applies to, inter alia, gold. It is, therefore, clear that when the two provisions are read together, no application under Section 127B(1) can be made in relatio .....

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so to Section 127B(1) read with Section 123 of the said Act. 8. The learned counsel for the respondent sought to draw some support from a decision of this Court in the case of Commissioner of Customs v. Ashok Kumar Jain: 2013 (292) ELT 32 (Del) as also a subsequent decision of another Division Bench of this Court in Komal Jain v. Union of India and Another: 2014 (304) ELT 675 (Del). In Ashok Kumar Jain (supra), the issue of Section 123 has not been considered at all. Insofar as the decision in K .....

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