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TMI Blog2018 (1) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... 1603, Heritage, Sector 62, Gurgaon, Haryana- 122002) (hereinafter referred to as 'the applicant' or 'the applicant firm') under Section 127B of Customs Act, 1962, (in short 'the Act') to settle the dispute arising out of Show Cause Notice C. No. VIII(H)49/Adj/2016/9203, dated 27-10-2016 (in short 'the SCN') issued by the Additional Commissioner of Customs (Preventive), Jodhpur, (hereinafter referred to as 'the Revenue'). 2. The facts of the case, in brief, as per the SCN are that intelligence was received that the applicant had misdeclared the value, quantity and description of goods imported vide Bill of entry no. 5077360, dated 28-4-16. The goods imported in container no. DRYU9137640 vide above Bill of entry were examined on 1/2-5-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; The goods i.e Glass Chattons and Drinking Water Glass quantified as 11348.95 Kgs and 12177.60 Kgs respectively, revalued at Rs. 1,50,12,951/- and Rs. 8,78,114/- respectively seized as per Annexure A to panchnama dated 1/2-5-2016 should not be confiscated under Section 111(l) & (m) of Customs Act, 1962; (iii) The Customs duty amounting to Rs. 46,78,488/- should not be demanded and recovered under Section 28 of the Customs Act, 1962, and an amount of Rs. 46,78,488/- already deposited should not be appropriated; (iv) Interest of Rs. 53,026/- @15% on delayed payment of Customs duty should not be demanded and recovered under Section 28AA of the Customs Act, 1962; (v) Penalty should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. 7. The Jurisdictional Commissioner vide letter dated 9-5-2017, informed that settlement application is not maintainable as the SCN has been decided vide Order-in-Original No. 12/2017 by Joint Commissioner of Customs, Jaipur on 10-3-2017 much before filing of settlement application. It has also been informed that the same was served upon the applicant at A-1603, Heritage, Sector-62, Gurgaon, Haryana-122002 through speed post no. ER367257633IN, dated 14-3-2017. The same was returned back from postal department with remarks "bina Dave returned". The said SCN was also served upon Ms. Shweta Agarwal, Proprietor of the applicant firm at the same address on 31-3-2017. 8. A matter was listed for hearing on 29-5-2017. Shri R.S. Soga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27-6-2017 filed additional submissions and drew attention to the identical case in respect of M/s. Emjay Creation - 2007 (219) E.L.T. 776 (Sett. Comm.) of Additional Bench, Mumbai , wherein, the adjudication order was passed, but was not delivered to the applicant and it was held that till the order is pronounced or published, the party affected has no means of knowing it. In such a situation the order cannot be said to have been passed. The applicant now requested to settle the duty at Rs. 36,49,220/- instead of Rs. 46,78,489/- demanded in the SCN and sought refund of Rs. 10,29,629/-, eventhough at the time of filing the Settlement Application, the applicant had paid and accepted entire duty liability of Rs. 46,78,489/- demanded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the hearing. Accordingly, he requested to consider the case sympathetically and grant immunity from penalty, prosecution and fine. (iii) No one appeared on behalf of Jurisdictional Commissioner. The Jurisdictional Commissioner vide their fax letter dated 11-7-2017, informed that submissions made vide their letter dated 9-5-2017 and during the hearing held on 29-5-2017 and 14-6-2017 may be placed on record. 12. We have perused the case records including the submissions made during the hearing on 12-7-2017. We further, observe that, in terms of the provisions as contained in subsection (1) of Section 127B, sub-section (1) of Section 127(C) and sub-section (2) of Section 127(F) , it is clear that an assess can make an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "bina dave returned". The said communication was also served upon Ms. Shweta Agarwal, Proprietor of the applicant firm at the same address on 31-3-2017. The Order-in-Original dated 10-3-2017 passed by Joint Commissioner of Customs, Jodhpur, apart from confirming Customs duty liability of Rs. 46,78,488/- has also imposed a penalty of Rs. 46,78,488/- on the applicant and Rs. 25,000/- on Ms. Shewta Aggarwal. Apart from this goods valued at Rs. 1,58,91,065/- which were seized and provisionally released on execution of Bond and Bank Guarantee, an option was given to the applicant to redeem the goods on payment of redemption fine of Rs. 30,00,000/-. 14. In view of the above and circumstances of the case, we note that the exclusive jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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