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The Commissioner of Customs Versus Avinash Dawar & Another

2015 (12) TMI 537 - DELHI HIGH COURT

Power of Settlement Commission to entertain the matter pertaining to Gold - Seizure of goods - Illicit import of goods - Imposition of interest and penalty - Held that:- Respondent sought to place reliance on the decision of this Court in Commissioner of Customs v. Ashok Kumar Jain: [2013 (8) TMI 317 - DELHI HIGH COURT]. But, the decision in Ashok Kumar Jain (supra) was distinguished inasmuch as the issue of Section 123 had not been considered at all. It was finally observed, upon a plain readin .....

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t Commission. It was also contended that the petitioner had gone to the extent of issuing a release letter dated 08.06.2015 subsequent to the order of the Settlement Commission. But, we cannot agree with this submission of the learned counsel for the respondent No.1 inasmuch as there cannot be any estoppel against the statute. Once the statute is clear that where the subject matter is ‘gold’, the Settlement Commission would not have any jurisdiction to entertain the application under Section 127 .....

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This petition is directed against the final order No.F-2348/CUS/ 2015-SC (PB) dated 17.04.2015 passed by the Custom and Central Excise Settlement Commission, whereby the respondent No.1 s settlement application was finally decided under Section 127C (5) of the Customs Act, 1962 in the following manner:- 9. In the instant case, the goods seized within a Customs area and, therefore, there is no doubt regarding the fact that they are imported. There is also an admission of illicit import by the ap .....

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has carefully considered the material available on record and submissions made by the applicant at the time of hearing. The Bench observes that the applicant has cooperated in the settlement proceeding and made full and true disclosure of their duty liability. The applicant has admitted and deposited ₹ 4,86,305/- as Customs duty. In view of the above and considering the facts and circumstances of the case, the Bench finally settles the case under Section 127C (5) of the Customs Act, 1962 o .....

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the settled amount of interest. Nothing further remains to be paid on this count. Penalty: In the facts and circumstances of the case, Bench imposes a penalty of ₹ 75,000/-( Rupees seventy five thousand only) on the applicant under the provisions invoked in the SCN and grants him immunity from penalty in excess of the said amount. Fine: The Bench orders a sum of ₹ 75,000/- (Rupees seventy five thousand only) to be paid as fine in lieu of confiscation. The gold kada and chain collect .....

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void and immunities withdrawn if the Commission finds, at any time, that the applicant has concealed any particular material to the settlement or has given false evidence or had indulged in fraud and mis-representation of facts for obtaining the settlement order. 12. A copy of this order is given to the applicant herein and to the jurisdictional Commissioner for their use in the implementation of this Order. No one should use this Order in any other manner or for any other purpose without the w .....

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25.08.2015. In that case also, an issue arose as to whether a settlement could have been arrived at by the Settlement Commission, where the subject matter was gold . Section 127 B and Section 123 of the Customs Act were examined. The said provisions read as under:- 127B. Application for settlement of cases. - (1) Any importer, exporter or any other person (hereinafter referred to as the applicant in this Chapter) may, in respect of a case, relating to him make an application, before adjudicatio .....

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t levy on account of misclassification, under-valuation or inapplicability of exemption notification or otherwise and such application shall be disposed of in the manner hereinafter provided : Provided that no such application shall be made unless,- (a) the applicant has filed a bill of entry, or a shipping bill, or a bill of export, or made a baggage declaration, or a label or declaration accompanying the goods imported or exported through post or courier, as the case may be, and in relation to .....

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court: Provided also that no application under this sub-section shall be made in relation to goods to which Section 123 applies or to goods in relation to which any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) has been committed: Provided also that no application under this sub-Section shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975). (1A) xxxx xxxx xxxx xxxx (2) xxxx xxxx xxxx xxxx (3) .....

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ession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify. (underlining added) 3. After examining the said provisions, this Court observed as under:- 7. On a plain reading of the third prov .....

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t Commission which has entertained the same and has also rejected the plea raised by the Revenue that it did not have jurisdiction to entertain such an application. We agree with the submission made by the learned counsel for the Revenue that the Settlement Commission did not have the jurisdiction to entertain such an application as there was a complete bar provided in the third proviso to Section 127B(1) read with Section 123 of the said Act. 4. In that case as in the present case also, the res .....

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