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TMI Blog2020 (3) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... and legal questions that arise in the four writ petitions constituting the first set of matters. 4. The petitioners challenge orders of the Settlement Commission dated 10-12-2008 (W.P. Nos. 1535, 3053 and 3054 of 2009) and 12-12-2008 (W.P. Nos. 1004, 1821 and 3055 of 2009) rejecting the applications filed by them in terms of Section 127C(5) of the Customs Act, 1962 (in short 'Act'). 5. The petitioner had purchased a used Toyota Prado vehicle (in short 'vehicle'). The facts leading to the import of this vehicle are that, one, Kottayil Ahmmed had imported the vehicle bearing Chassis Number KZ J 95 0151130 under a Bill of Entry bearing No. 121795, dated 7-1-2003 under the Transfer of Residence Rules. The assessable value was declared at a sum of Rs. 3,32,284.95 and upon payment of duty of Rs. 6,03,730/-, the vehicle was cleared. 6. Subsequent investigation appeared to reveal that the Chassis number had been temporary, the actual Chassis Number being KZ J 95-0091013. The date of manufacture was 4-3-1998. The assessable value as well as the duty were reworked on the basis of the investigation at a sum of Rs. 5,25,130/- and Rs. 9,54,113/- respectively. The duty ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs (Import), Cochin Customs House, Cochin within 30 days of the receipt of the notice as to why :- (i) The date of manufacture and first date of registration of the used Toyota Land Cruiser Prado vehicle imported vide Bill of Entry No. 121795, dated 7-1-2003 should not be taken as 4-3-1998 and 25-3-1998 respectively. (ii) Why the value of the vehicle should not be determined by adopting residual method under Rule 8 of the Customs Valuation Rules, 1988 as per details given in Annexure 'A' which works out to Rs. 5,25,130/-. (iii) Why the duty amount of Rs. 3,50,383/- short paid at the time of import by wilful misstatement and suppression of facts should not be demanded and recovered under proviso to section 28(1) of the Customs Act, 1962 and interest as applicable should not be demanded and recovered on the same under the provisions of section 28AB ibid. (iv) The imported Toyota Prado bearing registration No. MH-06-T-9950 having declared chassis No. KZJ95-0151130 and of ascertained value as given in Annexure "A" to thus notice should not be confiscated under Section 111(m) and 111(o) of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable. 10. The application came to be listed thereafter for final hearing before the SC and resulted in the passing of the impugned order dated 12-12-2008. The SC notes and narrates the relevant facts including the specific submission of the petitioner to the effect that interest in terms of Section 28AB could be demanded only from the importer and reliance placed by him on the judgment of the Supreme Court in the case of Collector of Customs v. Trivandrum Rubber Works Ltd. [1999 (106) E.L.T. 9 (S.C.)] and upon the order of Settlement Commission dated 7-1-2008. Thereafter, the Commission extracts the provisions of Section 127B which deals with 'Application of settlement of cases' and the proviso thereto. The Commission notes that one of the conditions for maintainability of the Settlement Application was that the additional amount of customs duty offered along with interest under Section 28AB ought to have been paid at the time of filing of the application itself, and the condition regarding the remittance of interest was not complied with in the petitioners' case. 11. The Commission proceeds on the basis that the petitioner was liable to the levy of interest and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he explanations offered at that stage. No doubt, the question regarding payment of interest on merits will stand reserved for detailed decision at the time of final hearing. 15. The peculiarity in these writ petitions is that the very issue raised by the petitioner on merits, being nil liability to interest in terms of Section 28AB of the Act, would be relevant to determine the maintainability of the application as well. Had the Commission proceeded to decide the issue of liability to interest on merits and held the same in favour of the petitioner, then, the deemed order of admission would, in retrospect, have been reiterated as proper. If, on the other hand the Commission rejects the plea of the petitioner on merits, which, in fact, it has done, then, the application will also be rendered non-maintainable, in the light of the bar under Clause (c)/first proviso/Section 127H. Thus a catch 22 situation presents itself. 16. Mr. Chopda draws attention to the facts involved, pointing out that the petitioner had clearly colluded with the importer in violating the terms and conditions of the notification. He argues that having colluded with the importer, the petitioner cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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