TMI Blog2020 (11) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... n the stand of the petitioner, the 1st respondent Settlement Commission was constrained to dismiss the application stating that the petitioner has raised the several contentious arguments which cannot be considered. Since there is no scope for the second opportunity to settle the case before the 1st respondent Settlement Commissioner by filing fresh application, one more chance can be given to the petitioner to settle the case by accepting the amounts that was originally offered as admitted the liability by the petitioner. The case is remitted back to the 1st respondent Settlement Commission to pass a fresh order within a period of six months from the date of receipt of a copy of this order - petition allowed by way of remand. - W.P. No. 29424 of 2015 and M.P. Nos. 1-2 of 2015 - - - Dated:- 19-2-2020 - C. Saravanan, J. Shri S. Murugappan, for the Petitioner. Shri A.P. Srinivas, Standing Counsel, for the Respondent. ORDER In this Writ Petition, the petitioner has challenged the impugned Final Order dated 16-7-2015 in Order No. 25/2015-Cus. passed by the 1st respondent. 2. By impugned order, the 1st respondent has rejected the application filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, totally valued at ₹ 25,90,455/-, should not be confiscated under Section 111(m) of the Customs Act, 1962 for misdeclaration of quantity of the goods and why DFIA licence debit should not be done for 25044.5 meters including the excess quantity of 6678.8 than the declared quantity of 18365.7 wherein the duty sought to be evaded worked to ₹ 2,55,760/- and (c) In respect of the Bill of Entry No. 4990516, dated 21-10-2011 : (i) The declared value of ₹ 25,75,128/- for the import of 49042.5 meters of cotton/polyester/poly-cot woven fabrics should not be rejected under Rule 12 of the Customs Valuation Rules, 2007 and are to be redetermined under Rule 3 of the CVR, 2007 as per the discussions in the preceding paragraphs. (ii) 37405.75 meters of cotton woven fabrics of yarns of different colours along with 8957.20 meters of 53.8% Cotton 46.2% polyester fabrics of YODC, 1528.6 meters of polyester fabrics and 1150.90 meters of cotton fabrics of higher GSM actually imported vide the above said Bill of Entry, should not be classified under CTH 5208 42 30, 5201 41 30, 5801 36 90 and 5208 42 30 respectively and as corroborated by the Textile Committee Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 188.9 meters of Cotton velvet fabrics should not be reclassified under CTH 5801.25. (iii) The above 19425.1 meters of fabrics for which the claim of the importer for the benefit of Customs Notification 98/2009-Cus., dated 11-9-2009 for duty free clearance should not be denied for the fabrics which are not covered by the three DFIA licences for the DFIA debit sought to be made and correspondingly the duty of ₹ 11,00,316 - as per the work sheet enclosed as annexure to this notice should not be demanded in respect of the above goods, (iv) The entire goods of assessable value of ₹ 30,92,433/- imported vide the above bill of entry should not be confiscated under Section 111(1), 111(m) read with Section 119 of the Customs Act, 1962, for misdeclaration of description, value and concealment of the undeclared goods. (e) In respect of the 21 past Bills of entry covered under the Category II and III the duty of ₹ 1,79,07,126/- should not be demanded from them under Section 28(4) of the Customs Act, 1962 along with applicable interest in accordance with Section 28AA of the Customs Act, 1962 in respect of the past bills of entry pertaining to the years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has been committed. 6. It was the contention of the respondent that since the imported goods are notified under Section 123 of the Customs Act, it was not open for the petitioner to settle the case under Section 127B of the Act. The 1st respondent Settlement Commission however decided to reject the application filed by the petitioner on merits on the ground that the Settlement is a forum where an applicant should come with the spirit of surrender, disclosing the full facts and not in a spirit of contention. The operative portion of the order reads as under : - 6.6 In as far as Category III is concerned, the jurisdictional Commissioner has stated that the goods were found to be cotton printed fabrics whereas the export product itself was cotton processed fabrics pertaining to Bills of Entry No. 217312/18-5-2009 and 70702/1-12-2010 covered by para 13.1 13.2 of the SCN. The nature of misdeclaration is such that it could not be found out during the visual examination. She has further stated that as regards th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner submits that the 1st respondent Customs, Central Excise Service Tax Settlement Commission answered in aforesaid paragraph 6.6. He further submits that the 1st respondent Customs, Central Excise Service Tax Settlement Commission erred in rejecting the application on the ground that the issue was the complex of fact and law raised by the rival parties. It should be adjudicated by the proper officer after appreciation of facts and evidence. 9. Opposing the Writ Petition, the Learned Counsel for the respondents submits that the 1st Settlement Commission has no jurisdiction and drew my attention to the decision of the Delhi High Court in Additional Commissioner of Customs v. Ram Niwas Verma, 2015 (323) E.L.T. 424 (Del.), wherein, the Court dealt with the situation arising under Section 123 of the Customs Act, 1962 and held as follows :- 7. On a plain reading of the third proviso to Section 127B(1) of the said Act, it is evident that no application for settlement can be made if it relates to goods to which Section 123 applies. Section 123 sub-section (2) specifically provides that the said Section applies to, inter alia, gold. It is, therefore, clear that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically indicated in Section 123(2) of the said Act. 10. The Learned Counsel for the respondent also submits that the issue is also covered against the petitioner by decision of the Division Bench of the Karnataka High Court in C.S. India v. Additional Director General, DCEI, Bangalore, 2015 (325) E.L.T. 91 (Kar.), wherein, the similar view was taken by the Court. 11. The Learned Counsel for the petitioner submits that to satisfy the requirement of the 3rd proviso under Section 127(B), the restrictions will apply only to where the goods are not only notified under Section 123 of the Customs Act, 1962, but also they should be smuggled goods. In this case, admittedly the goods were not smuggled and therefore, in absence of smuggling, 3rd proviso to Section 123 of the Customs Act, 1962 cannot be applied even though the imported goods are notified. 12. I have considered the arguments advanced by the Learned Counsel for the petitioner and the Learned Standing Counsel for the respondents. 13. The petitioner had originally admitted the liability of ₹ 83,27,539/- and interest of ₹ 23,82,092/-. However, during the course of hearing, the petitioner wanted to reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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