9911796707
TMI Blog2007 (9) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) that the goods were actually fabrics containing 85% or more by weight of texturized filament yarns which attracts BCD @1 Rs.23/- sq. m., the officers of DRI took up the case for investigation On 4-10-2006, the goods were examined by the officers of DRI and the same were found to be Dyed Woven Polyster Fabric of width 58" Samples were drawn and sent to Central Silk Technological Research Institute, Bangalore to ascertain whether the sample fabric was made up of polyster filament yarn and if so to report the actual percentage by weight of texturized and non-texturized filament yarn contained in the sample. The report indicated that the fabrics were made up of 100% polyster filament yarn and the % non-texturized filament yarn is 0%. Consequently, the goods were seized under mahazar dated 25-10-2006 on a reasonable belief that the imported goods did not correspond to the declaration given in the bill of entry. The authorized representative of the proprietor vide his statement had also admitted that there was a misdeclaration of the fabrics to claim partial Customs duty as exemption by terming the goods imported to be non-texturised polyster filament yarn instead of the same being te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-texturised polyster filament yarn 85% or more by weight. They submitted that the total duty demanded in the Show Cause Notice from them is Rs.21,15,276/- as against the total Customs duty of Rs.2,29,918/- sought to be paid by them in the Bill of Entry. Thus, the differential duty demanded was Rs.18,85,358/- which has been paid in advance before issue of the Show Cause Notice. They pleaded that all the conditions for admission of the application in terms of Section 127B of the Customs Act, 1962 have been fulfilled and, therefore, their application should be admitted by the Bench. When asked about the contention by Revenue for not admitting the application on the ground that the imported goods were specified under a Notification issued under Section 123 of the Customs Act, 1962, they submitted that this matter has already been settled by a Five Member Special Bench of the Settlement Commission in the case of IN RE: Idris Y. Porbunderwala, Special Bench Order No.1/2005-Cus. dated 7-6-2005 [2005 (186) E.L.T. 356 (Sett. Comm.) wherein it has been decided that the applications per se are not barred in relation to the goods which are listed or notified under sub-section (2) of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as follows "(3) 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" Section 123 of the Customs Act, 1962 reads as follows :- "Section 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 where such seizure is made from the possession of any person (i) on the person from whose possession the goods were seized, and (ii) if any person, other than the person from whose possession 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". (b) The Bench finds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions are barred in respect of the above cited goods, only when the said goods are seized on reasonable belief that they are smuggled goods, in terms of sub-section (1) of aforesaid Section 123? Answer : The applications may not get barred merely because the goods are seized on reasonable belief that they are smuggled goods under sub-section (1) of Section 123 of the Act. The Commission itself can also determine, whether there was justifiable ground for reasonable belief in the facts and circumstances of the case and whether the provisions of the said section are rightly invoked in the Show Cause Notice. Similarly, even if provisions of Section 123 are not invoked in a Show Cause Notice, the Commission can come to its own conclusion on the invocability of the Section to the instant case. (c) Whether for applications in respect of such goods which have been cleared under a Bill of Entry the aforesaid bar would come into play on subsequent seizure of such goods? Answer The bar laid down in the third proviso to sub-section (1) of Section 127B of the Act could come into play in respect of the specified goods which have been cleared under a Bill of Entry but are subsequently seized u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, it has been found by Revenue and proved by chemical tests and admitted by the applicants that the goods under import did not tally with the particulars declared and contained in the Bill of Entry filed. In such circumstances, the goods were seized by Revenue under the reasonable belief that they were smuggled goods. The Show Cause Notice has also been issued by Revenue to the applicants asking them to show cause as to why the goods should not be confiscated under the provisions of the Customs Act, which itself, as per definition of "smuggling' in terms of Section 2(39) of the Customs Act, 1962 goes to prove that the Revenue had reasonable belief that the goods were smuggled goods. With these facts and circumstances of the present case, this Bench finds that this case squarely falls within the domain of the question and answer given in the sub-para (c) of para 28 of the order of the Special Larger Bench in this regard as mentioned above. The applicants have argued that their case does not fall in this category as the goods have not been seized subsequent to the clearance. However, this Bench is of the view that this argument a lame excuse because if the DRI Officers in this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
