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TMI Blog2019 (11) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... mposition of penalty on it, the petitioner filed a Rectification Application, before the Settlement Commission, which stands rejected by communication, dated 18th February, 2019, addressed to the petitioner by the Senior Investigating Officer (SIO), communicating the decision, of the Settlement Commission, to reject the Rectification Application as, in its view, there was no error apparent in the Order dated 1st November, 2018. 2. The petitioner, by means of this writ petition, calls into question the aforesaid decision of the Settlement Commission, to reject the Rectification Application filed by the petitioner, as communicated to the petitioner vide letter dated 18th February, 2019 supra, and prays, further, that the Settlement Commission be directed to reconsider the Rectification Application filed by the petitioner. Facts 3. Acting on the basis of information, regarding evasion of Customs duty on import of signage materials from China and Taiwan, by misdescription and undervaluation, by various importers including M/s. Taneja Technocom, a proprietary concern of Manish Taneja, a search was conducted, by a team of the DRI, at the premises of M/s Taneja Technocom, on 3rd Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued to the petitioner, requiring the petitioner to show cause as to why (i) the assessable value of the aforesaid imported goods, as declared, be not rejected under Section 14 of the Customs Act, read with Rule 12 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 (hereinafter referred to as "the Customs Valuation Rules"), and be not re-determined as Rs. 21,57,64,703/-, under Section 14 of the Customs Act read with Rules 3 and 9 of the Customs Valuation Rules, (ii) differential Customs duty of Rs. 79,21,701/-, evaded/short paid in respect of the goods imported under the Bills of Entry covered by the Show Cause Notice, be not demanded and recovered from the petitioner under Section 28 of the Customs Act, along with interest, (iii) the amount of Rs. 26 lakhs, paid during investigation, be not appropriated against the aforesaid demand, (iv) the seized goods be not confiscated, under Section 111 (m) of the Customs Act, and (v) penalty be not imposed on the petitioner under Sections 112 and 114AA of the Customs Act. 7. Instead of contesting the aforesaid Show Cause Notice, dated 24th March, 2017, by subjecting himself to adjudication proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red value at the time of import thereby benefiting at the cost of the exchequer. The Bench holds that the applicant is liable to penalty under the provisions invoked in the impugned SCN. (ii) Under the circumstances, the Bench holds that the seized goods imported through ICD TKD (Export) under cover of Bills of entry no.7457415 dated 15.11.2016 having redetermined value of Rs. 43,08,325/- and the goods seized at godowns of the applicant, having redetermined value of Rs. 1,47,98,678/- and released provisionally are liable to confiscation." 9. Observing that, the petitioner had fully and truly disclosed it's liability, and had deposited the same and cooperated with the proceedings, the Settlement Commission held that the petitioner was entitled to have the case settled, under Section 127C(5) of the Customs Act. Accordingly, the case was settled in the terms already set out in para 1 supra. 10. Invoking the jurisdiction, vested in the Settlement Commission by Section 127C(5A) of the Customs Act, the petitioner moved an application, for rectification of the aforesaid Final Order, dated 1st November, 2018. It was sought to be urged, in the said application, that the Settlement Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsed the decision to award penalty, while adjudicating the Rectification Application filed by him. 15. We do not agree. 16. We are unable to subscribe to the contention, advanced by Mr. Seth, that the finding, of the Settlement Commission, regarding the petitioner having spread out its imports over various ports, so as to explore the chance of evading duty, is foreign to the Show Cause Notice. Para-12 of the Show Cause Notice clearly sets out, in tabular form, the ports through which imports had been effected by the petitioner, as well as the number of Bills of Entry filed at each port. A glance thereat reveals that imports were effected via 77 Bills of Entry filed at ICD, TKD (Export), 6 Bills of Entry filed at ICD, TKD (Import), 1 Bill of Entry filed at Chennai Sea Port, 2 Bills of Entry filed at ICD, Nagpur and 6 Bills of Entry filed at ACC, Delhi, totaling 92 Bills of Entry. The fact that the petitioner had spread out its imports through various ports is, therefore, part of the record, with specific allusion, thereto, available in the Show Cause Notice. That the petitioner had done so, in order to create an orchestrated system of evading duty, was a finding arrived at, by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of its affairs, and did not dispute the duty liability, as quantified in the Show Cause Notice, dated 24th March, 2017 supra. That, by itself, would not, however, entitle the petitioner to immunity from penalty. Section 127H(1) of the Customs Act, which deals with the power, of the Settlement Commission, to grant immunity from prosecution and penalty, reads thus: "127H. Power of Settlement Commission to grant immunity from prosecution and penalty. -(1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 127B has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act and also either wholly or in part from the imposition of any penalty and fine under this Act, with respect to the case covered by the settlement: Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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