9911796707
TMI Blog2022 (6) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... ORAL JUDGMENT (PER K.R. SHRIRAM, J.) : 1. On 18th December 2001, rule was issued and ad-interim relief was granted. 2. Petitioner no.1 is a Company incorporated under the laws of Cayman Islands and is operating in India since 1983 for providing logging and perforating services to the Oil companies. Other petitioners are employees of petitioner no.1. 3. Upto 1998, petitioner no.1 provided logging and perforating services to only ONGC. Petitioner no.1 caused number of logging tools for its contract with ONGC to be imported by ONGC without payment of customs duty or at a concessional rate of duty under different notifications issued u/s 25 (1) of the Customs Act, 1962 (for brevity the 'Act'). Most of the tools and equipments imported were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. This realization dawned upon petitioner during certain investigation that customs authorities carried out. Petitioners, therefore, approached the customs authorities offering to pay the customs duty. Show cause notice came to be issued to petitioner. Having received show cause notice, petitioner approached Settlement Commission, i.e., respondent no.3, by way of an application u/s 127-B of the Act. Application of petitioner came to be rejected by respondent no.3 vide its order dated 11.10.2001 which is impugned in this petition. Rejection was not on merits but on eligibility of petitioner to file the application. According to respondent no.3 only the person who has filed a bill of entry could have filed this application and since in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of which he admits short levy on account of misclassification or otherwise of goods to the Settlement Commission to have the case settled and such application shall be disposed of in the manner hereinafter provided: Provided that no such application shall be made unless- (a) the applicant has filed a bill of entry, or a shipping bill, in respect of import or export of goods, (as the case may be, and in relation to such Bill of entry or shipping bill) a show cause notice has been issued to him by the proper officer; (b) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees: Provided further that no application shall be entertained by the Settlement Commission under this sub-section in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner and therefore, a proceeding under this Act for the levy, assessment and collection of customs duty was pending before an adjudicating authority when the application under Section 127B was made. If we accept what Mr. Walve states that a bill of entry not having been filed by petitioner, petitioner was not eligible to file application, in that case, show cause notice also could not have been issued to petitioner because the petitioner was not the importer, which Hardy was. Therefore, Mr. Walve's submission cannot be accepted. Term "any other person" appearing in Section 127-B of the Act has to be interpreted to mean in its literal sense and proviso to the said Section should be interpreted to mean that a bill of entry must be filed in a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the proviso stands satisfied. So far as first part is concerned, he submitted that filing of bill of entry by the applicant may not be considered as essential because, there may be occasions where a person may have imported goods in absence of a bill of entry. 3.1 Mr. Dave relied on the decision in the case of A.Mahesh Raj, 2001 (131) E.L.T.707 (Settlement Commission) where similar situation came to be dealt with by Settlement Commission, Chennai. There also the Commissioner had objected to admission of application mainly on the ground that no bill of entry was filed by the applicant and, as such, the condition under clause (a) under the first proviso of sub-section (1) of Section 127B of the Customs Act, 1962 was not satisfied. There t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who may not be the importer or exporter, can file such an application before the Commission, if he is served with a show cause notice charging him with duty. The view taken by the Commission in the impugned order is, therefore, not in consonance with the view taken by the Larger Bench of the Settlement Commission, Customs and Central Excise, Chennai, in the case of Yousuff Kasim Sait and we, therefore, without expressing any opinion on merits of the case of the petitioners, set aside the order impugned in the petition and direct the commission to examine the application of the petitioner in the light of the decision in the case of Yousuff Kasim Sait and in accordance with law. The petition, accordingly, stands allowed. Rule is made absol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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