Page 167 - ELT_15th August 2020_Vol 373_Part 4

2020 ] MILLIONS FASHION v. CUSTOMS, C. EX. & S.T. SETT. COMM., CHENNAI 501

127B 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 Sub-
stances 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 appli-
cant 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 re-
gards the other 3 bills of entry covered by category III of the SCN, the SCN
has a clear findings as to how the applicant has misdeclared description of
the goods so as to match with the description of the goods in the import li-
cences.
6.7 Thus, it is seen from the discussion supra, the applicant instead of ad-
mitting duty liability, has been shifting his stand every time so that no con-
sensus has been arrived at between the applicant and the Revenue.
7. As far as the preliminary objection raised by the 1st respondent Set-
tlement Commission referred to the decision of the Settlement Commission in its
order in In Re : Idris Y. Porbunderwala, 2005 (186) E.L.T. 356 (Sett. Comm.), where-
in, in paragraph No. 28(a), the issue was answered as follows :-
28. From the aforesaid discussions and the cases cited and discussed
above, we conclude that invocability of the provisions of Section 123 is an
essential ingredient to determine the applicability of the said section to the
seized goods so as to decide whether the mischief of the third proviso to
sub-section (1) of the Section 127B of the Act would come into play. The is-
sues referred to Special Bench for decision can be answered as below :-
(a) Whether applications, per se, are barred in relation to goods which are
listed under sub-section (2) of Section 123 or are notified under the said
sub-section?
Answer : The applications per se are not barred in relation to goods which
are listed or notified under sub-section (2) of Section 123 of the Act.
(b) Whether applications are barred in respect of the above cited goods,
only when the said goods are seized on reasonable belief that they are
smuggled goods, in terms of sub-section (1) of aforesaid Section 123?
Answer : The applications may not get barred merely because the goods
are seized on reasonable belief that they are smuggled goods under sub-
section (1) of Section 123 of the Act. The Commission itself can also deter-
mine, whether there was justifiable ground for reasonable belief in the facts
and circumstances of the case and whether the provisions of the said sec-
tion are rightly invoked in the Show Cause Notice. Similarly, even if provi-
sions of Section 123 are not invoked in a Show Cause Notice, the Commis-
EXCISE LAW TIMES  15th August 2020  167