TMI Blog2019 (11) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty at different ports - HELD THAT:- The decision, of the Settlement Commission, to award penalty, is not based on any particular finding, but is premised on the overall merits of the case. The Settlement Commission has chosen to pentfurcate the total quantum of penalty, depending on the quantum of imports effected at different ports and, in doing so, we do not see that the Settlement Commission committed any rectifiable error. It cannot be said that the decision, of the Settlement Commission, to impose penalty on the petitioner, suffers from any error apparent on the face of the record. Consequently, the impugned decision, of the Settlement Commission, to reject the petitioner s application for rectification, too, does not suffer from any such infirmity, as would call for interference by this Court, in exercise of its writ jurisdiction. Immunity from penalty can be granted, by the Settlement Commission, either in whole or in part. The Show Cause Notice, dated 24th March, 2017 supra, proposed imposition of penalty, on the petitioner, under Sections 112 and 114AA of the Customs Act. The quantum of penalty, as awarded by the Settlement Commission, is only 10% of the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 October, 2016. Electronic goods, valued at ₹ 44,20,365/ , were found therein which, on further investigation, were found to have been imported in the name of the petitioner, which is also a proprietary concern of Puneet Taneja, brother of Manish Taneja. Following thereupon, search was conducted, by the DRI team, at the office-cum-godown of the petitioner, where goods, of which the declared value was ₹ 1,20,34,534/-, were found and subjected to investigation, as undervaluation, thereof, was suspected. During investigation, the petitioner deposited ₹ 26 lakhs, towards partial payment of duty liability on undervalued imports, effected by it. 4. Puneet Taneja, in his statement under Section 108 of the Customs Act, 1962 (hereinafter referred to as the Act ) admitted under invoicin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) the amount of ₹ 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, the petitioner chose to approach the Settlement Commission, under Section 127B of the Customs Act, to have the case settled. The petitioner did not contest any part of the demand proposed in the Show Cause Notice and admitted, and paid, the entire proposed differential duty liability of ₹ 84,28,058/ , along with interest, thereon, of ₹ 22,12,969/ . 8. The Settlement Commission settled the case, arising from the issuance of the aforesaid Show Cause Notice dated 24th March, 2017, vide Final Order, dated 1st November, 2018. The findings of the Settlement Commission may be reproduced thus: 22. The Bench has carefully examined the case records and arguments put forth by the applicant and the Revenue. The applicant has accepted ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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 Commission had imposed penalty on the petitioner on the basis of an erroneous finding that the petitioner had consciously chosen to spread out its imports through various ports and had, thereby, devised a planned strategy to evade Customs duty. No such allegation, the petitioner sought to point out, was contained in the Show Cause Notice, dated 24th March, 2017 supra, issued to the petitioner. Pointing out that the penalty imposed by the Settlement Commission was exorbitant, the Rectification Application prayed that the error apparent on the face of the order dated 1st November, 2018 supra, be rectified and the decision, to impose penalty on the petitioner, be, accordingly, reconsidered. 11. The impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort), 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 Settlement Commission, which, in our view, was entirely within the province of jurisdiction of the Settlement Commission, and at which it was quite competent to arrive. We cannot, therefore, accept the submission, advanced by Mr.Seth, that the said finding, by the Settlement Commission, travelled beyond the allegations in the Show Cause Notice. 17. In any event, we are not convinced that the decision, of the Settlement Commission, to impose penalty on the petitioner, was premised solely on this finding. The paras, in the Order, dated 1st November, 2018, of the Settlement Commission, wherein penalty has been imposed on the petitioner, read thus: Penalty: The Bench imposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity 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 receipt of the application under section 127B. 20. Clearly, cooperation with the Settlement Commission does not, ipso facto, insulate an applicant from penalty, though non-cooperation does disentitle an applicant thereto. Cooperation with the Settlement Commission, and the making of a full and true disclosu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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