TMI Blog2021 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of violating law. The petitioner had got habituated of importing refurbished hard disk contrary to the provisions of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 and the provisions of the Foreign Trade Management (Development And Regulation) Act, 1992 - first respondent Settlement Commission has ordered absolute confiscation of the seized goods which were in the custody of the petitioner which were allegedly lost in the fire accident in the petitioner s godown in Bangalore. The goods would have absolutely stood vested with the Government in terms of Section 126 of Customs Act, 1962 if adjudication proceedings were allowed to go on or in the alternative, allowed to be redeemed by the petitioner on payment of redemption fine under Section 125 of the Customs Act, 1962. The order of the first respondent Settlement Commission is a package and it is not a substitute for an adjudication order that would have been passed by an adjudicating authority under the Act. It is for the petitioner to take advantage of it as it is or face the consequences by violating it - petition dismissed. - W.P.No.11062 of 2017 And W.M.P.No.12005 of 2017 - - - Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y only) should not be confiscated under Section 111(d), Section 111(m) and Section 111(o) of the Customs Act, 1962 read with Rule 17 of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 read with Section 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rules 11 and 14 of the Foreign Trade (Regulation) Rules, 1993 for importing refurbished goods and for wrong availment of the notification benefit; vi. the impugned goods (other than the refurbished goods mentioned in para supra) seized in the godown premises of the importer at Bangaluru, as detailed in worksheet-II to this notice, totally valued at ₹ 14,72,634/- (Rupees fourteen lakhs seventy two thousand six hundred and thirty four only) should be confiscated under Section 111(m) and Section 111(o) of the Customs Act, 1962 for wrong availment of notification benefit; vii.the impugned refurbished goods seized in the branch premises of the importer at Chennai, as detailed in worksheet-II to this notice, totally valued at ₹ 12,04,605/- (Rupees twelve lakhs four thousand six hundred and five only) should not be confiscated under Section 111(d), Section 111(m) and Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght hundred and fifty two only) voluntarily paid by them during the course of investigation, should not be adjusted towards duty, interest and other adjudications liabilities. 4. The allegation against the petitioner in the Show Cause Notice was that from 2013 onwards, the petitioner had paid lesser amount of additional duty of customs on the imported goods payable under the Central Excise Notification No.12/2012-C.E. dated 17.03.2012 as amended from time to time with effect from 30.04.2015. The total value of consignments imported by the petitioner was estimated as ₹ 7,69,10,673/-. Out of which, on 13.01.2016, a portion of the consignments was seized at petitioner's godown at Bangalore and at Chennai as detailed below:- Place Value Remarks Chennai ₹ 12,04,605/- Refurbished contrary to Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008. Bangalore ₹ 91,93,230/- - do - Bangalore ₹ 14,72,631/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 15,000/- (Rupees Fifteen Thousand only) is imposed on the goods under Section 125 of the Customs Act, 1962 in lieu of confiscation. v. The impugned refurbished goods seized in the branch premises of the applicant firm at Chennai totally valued at ₹ 12,04,605/- are confiscated absolutely under Section 111(d), Section 111(m) and Section 111(o) of the Customs Act, 1962 read with Rule 17 of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 read with Section 11(1) of Foreign Trade (Development and Regulation) Act, 1992 and Rules 11 and 14 of the Foreign Trade (Regulation) Rules, 1993. vi. The impugned goods (other than the refurbished goods) seized from the godown premises of the applicant at Chennai totally valued at ₹ 24,800/- are confiscated under Section 111(m) and 111(o) of the Customs Act, 1962. However, a fine of ₹ 500/- (Rupees Five Hundred only) is imposed on the goods under Section 125 of the Customs Act, 1962 in lieu of confiscation. vii.The impugned refurbished goods imported and cleared by the applicant totally valued at ₹ 7,69,10,763/- at their two godowns were not available for seizure at any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner since the goods were absolutely confiscated without any redemption fine. 8. It is submitted that the petitioner is a dealer of Hard Disc and Computer Hard Work in India. The hard disks which were imported by the petitioner were found to be pre-dominantly refurbished after import. It is therefore submitted that on several occasions, the goods imported contrary to the restrictions were allowed to be redeemed on payment of fine and penalty and exported back under the provision of the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 read with Section 11(1) of the Foreign Trade (Development and Regulation) Act, 1992 and Rule 11 and 14 of the Foreign Trade (Regulation) Rules, 1993. In this connection, reference was drawn to the imports made under the following three Bills of Entry and the corresponding Orders-In-Originals :- Sl. No. Bill of Entry Value of Import Order-in-original Redemption fine Penalty No Date Declared Re-determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission or question of facts are concerned, the same is not open for examination either by the High Court or by the Supreme Court. In the present case the order of the Settlement Commission clearly indicates that the said order, particularly, with regard to the imposition of simple interest @ 10% per annum was passed in accordance with the provisions of Rule 14 but the High Court wrongly interpreted the said Rule and thereby arrived at an erroneous finding. So far as the second issue with respect to interest on ₹ 50 lakhs is concerned, the same being a factual issue should not have been gone into by the High Court exercising the writ jurisdiction and the High Court should not have substituted its own opinion against the opinion of the Settlement Commission when the same was not challenged on merits. 12. However, in paragraph No.14, the Hon'ble Supreme Court has indicated that such orders can be challenged in a higher forum. Paragraph No.14 of the said Judgment reads as under:- 14. The order of the Settlement Commission also indicates that full immunities were granted to the respondent from penalty and prosecution. The aforesaid order was not challenged by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has shown mercy on the petitioner by allowing substantial benefit to the petitioner. 16. The facts also indicate that goods valued ₹ 7,69,10,763/- and ₹ 18,20,274/- were not available for confiscation as the petitioner had already sold the refurbished hard disk and taken advantage. The first respondent Settlement Commission has therefore refrained from ordering confiscation of the goods or imposing redemption fine as they were not available for confiscation. 17. The first respondent Settlement Commission has ordered absolute confiscation of the seized goods which were in the custody of the petitioner which were allegedly lost in the fire accident in the petitioner s godown in Bangalore. The goods would have absolutely stood vested with the Government in terms of Section 126 of Customs Act, 1962 if adjudication proceedings were allowed to go on or in the alternative, allowed to be redeemed by the petitioner on payment of redemption fine under Section 125 of the Customs Act, 1962. 18. Having opted to settle the case before the first respondent Settlement Commission, it is not open for the petitioner to dissect the order of the first respondent Settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
