1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 83 OF 2002 Shri Ramasamy Suppiah Venugopal Blk 291, H-03-03 Buikit Batok Street 24 Singapore. ... Petitioner versus 1. Union of India, through Commissioner Customs And Central Excise, Goa. 2. The Settlement Commission, Additional Bench having its office at Utppad Shulakh Bhavan, Bandra-Kurla Complex, 3. Deputy Director, D.R.I. Goa, Regional Unit, H-1, Gharse Tower M. G. Road, Opp. Don Bosco High School, Panaji, Goa-401 001. ... Respondents Shri S. P. Kanuga, Advocate for the Petitioner. Shri J. Vaz, Central Government Standing Counsel for Respondent Nos.1 and 3. CORAM : A. P. DESHPANDE & N. A. BRITTO, JJ. DATE : 14TH NOVEMBER, 2008. 2 JUDGMENT(Per N. A. BRITTO, J.) This writ petition is directed against final Order dated 17-10-2001 of respondent no.2-the Settlement Commission (Commission, for short) by which the Commission has rejected the petitioner's application for settlement, filed under Section 127B of the Customs Act, 1962 (Act, for short). 2. Some facts are required to be stated to dispose of the petition. The petitioner, a Singaporean national and one Shri N. B. Dichwalkar, an Indian national, arrived at Dabolim, Goa on 15-5-2000 by Air India Flight No.860. As per the petitioner, the petitioner declared 7 packages on the baggage declaration form which was processed and which is evident from the noting appearing on the reverse of the said baggage declaration form. The Officers of the Customs levied a duty of Rs.1,19,340/- payable by the petitioner on 7 packages and a receipt No.33382 dated 15-5-2000 was issued to the petitioner. The petitioner allowed his co-passenger to put the packages on the trolley and take them out as he waited for one of the packages which had not come and after the petitioner came out the petitioner understood from his friends that the Directorate of Revenue Intelligence(D.I.R., for short) had taken the co-passenger to their office, and, as the inquiry would take a little time, the petitioner returned to Singapore and after his return the petitioner filed an affidavit stating that the baggage/packages were brought by him and were legally imported as part of the baggage and were not smuggled and the petitioner had paid the duty. 3 3. There is no dispute that the petitioner was issued a show cause notice dated 31-10-2000 calling upon the petitioner to show cause as to why action in terms of Sections 111(d) and 112 of the Customs Act, 1962 should not be taken against him. In fact, the said show cause notice was issued to the petitioner, the said Shri N. B. Dichwalkar and others, and, as far as the petitioner is concerned the said show cause notice has now culminated in Order dated 10-6-2005 issued by the Commissioner of Customs and Central Excise, Goa, a copy of which has been produced on behalf of the respondents, and, which Order has attained finality, the same having not been appealed from, to the Customs Excise and Service Tax Appellate Tribunal. By the said Order the petitioner has been directed to pay a penalty of Rs.15,00,000/- under Section 112(a) of the Customs Act, 1962. The goods have been confiscated under Section 111(d) of the Act with option given to the said Shri N. B. Dichwalkar to redeem the same on payment of redemption fine of Rs.3,00,000/- within a period of three months. A penalty of Rs.2.50 lakhs has also been imposed on the said Shri N. B. Dichwalkar under Section 112(a) of the Act and further penalty of Rs.17,00,000/- as some of the goods were not available for physical verification. 4. As per the petitioner, Section 127B of the Act was introduced in the Act to enable the persons who have imported the goods to settle the matter by paying the customs duty and such other amount as may be determined by the Commission within the specified period without having to go over and consume time in litigating the matter and as such the petitioner made an application before 4 the said Commission dated 17-7-2001 and which has been rejected on the ground that the petitioner is not an importer. It is the case of the petitioner that the Revenue has misled the said Commission in arriving at an erroneous finding that the said goods seized did not belong to the petitioner and as such he was not an importer. As per the petitioner the said baggage declaration(at page 38 of the paper book) shows that the packages being one JVC flat T.V./Monitor, Sony flat T.V./Monitor, seven projectors and accessories were declared by the petitioner which were processed and shown on the reverse of the said declaration form, and the said packages which were brought weighed 182 kgs. and the correspondence carried out by the DRI confirms that there were 7 packages weighing 182 kgs., and except the said 7 packages no other goods were booked by the petitioner. The petitioner had paid excess freight at Singapore on the said packages. It is the case of the petitioner that it was contended by the Revenue before the said Commission that the duty of Rs.1,19,340/- paid by the petitioner did not relate to the goods seized by respondent no.1's officers and the order records that the goods were seized at the entrance of the airport and both the findings to that effect are based on no evidence. It is the case of the petitioner that the said packages were booked by the petitioner and carried by the petitioner as his baggage to Goa and the documents on record clearly indicate that the goods contained in the said 7 baggages were declared by the petitioner and it is the case of the Customs that the goods sent out were put in Maruti van and thereafter the said van was intercepted and that the said Commission was misled by respondent nos.1 and 3 to believe that the goods declared by the petitioner were not the goods which were seized 5 and the finding that there is no co-relation between the goods declared and the duty paid is unreasonable and is not borne out by the averments made in the show cause notice and is contrary to the documents produced. As per the petitioner the flat T.V. is also known as Plasma Display Monitor and similarly the projectors are also shown in the baggage receipt and therefore the submission made by the Revenue that the goods were not from the possession of the petitioner is absolutely wrong and misleading. The case of the petitioner is that the goods were declared by the petitioner, the duties were paid by the petitioner and the goods were sent by the petitioner and as the petitioner is the importer and the finding that the petitioner is not an importer of the goods is wrong. It is therefore the case of the petitioner that he was entitled to make an application to the Commission under Section 127B of the Act. 5. The DRI, through its Deputy Director, has filed an affidavit in reply and it is stated therein, that the grounds cited for the decision of the Commission for rejection of the application of the petitioner is that the goods seized outside the airport were in possession of the said Shri N. B. Dichwalkar and the declaration filed by the petitioner with the Customs does not co-relate with the goods actually seized by DRI and since the goods declared do not co-relate with the goods seized it cannot be considered whether any declaration/bill of entry was filed by the petitioner in respect of the goods seized. It is stated that under normal circumstances a passenger collects all 6 of his baggage and goes to the Customs area for making a declaration and that the statements of the petitioner in paras 4 and 5 of the petition that he had allowed his co-passenger to take the goods out of the airport is an afterthought. It is stated that the goods were intercepted by the DRI outside the airport premises and in case the petitioner had declared the goods to the Customs and had no malafide intention, the petitioner ought to have approached the DRI for claiming the goods but instead the petitioner disappeared from Dabolim, Goa and could not be traced and thereafter filed his claim from Singapore for the goods seized. As per the DRI the goods declared were: (1) one JVC Flat T.V., (2) one Sony Flat T.V., and (3) two Sony projectors while the goods seized were: (1) one JVC Plasma Display Monitor, (2) one Sony flat Panel Monitor, (3) one Sony Beta cam VCP, (4) one ASK LCD Projector, (5) two Panasonic LCD Projectors, (6) one Kodak Slide Projector, (7) one Epson Slide Projector, and (8) assorted accessories, and these facts were brought to the notice of the Commission leading to the observation that there was no co-relation between the goods seized and the goods declared. It is stated that the DRI had told the Commission that the petitioner had 7 remained inside the airport after sending the goods out along with the said Shri N. B. Dichwalkar and as an afterthought, after the goods were detained outside the airport, had declared part of the goods which were not in his possession and paid duty thereon. It is stated that the stand of the DRI in the show cause notice as well as before the Commission is consistent with the facts supported by the documentary evidence and the contention of the petitioner that he had shown the goods seized by DRI to the Customs for assessing the duties is incorrect and misleading. The DRI has reiterated that the goods declared by the petitioner were different from the goods seized by the DRI and the goods seized were from the possession of the said Shri N. B. Dichwalkar and not from the petitioner at a time when the petitioner was inside the airport. It is stated that as provided under Section 127B of the Act, it is mandatory that the importer has to file a bill of entry of the goods imported and in the present case the petitioner filed a baggage declaration for one JVC Flat T.V., one Sony Flat T.V. and two Sony Projectors and has claimed that he paid duty on the above imported goods but as regards the goods seized from the possession of the said Shri N. B. Dichwalkar there has been no bill of entry or any other documents filed before the Customs authorities and therefore the first proviso to Section 127B is not complied with. It is stated that the goods seized were from the possession of Shri N. B. Dichwalkar and not from the petitioner and there being no bill of entry/declaration filed for the goods seized as required under first proviso to Section 127B of the Act, no fault could be found in rejecting the claim of the petitioner by the Settlement Commission. 8 6. Admittedly, Chapter XIVA of the Act along with Sections 127A to Section 127N came to be introduced w.e.f. 1-8-1998 and they were enacted with a view to sort out the disputes between the Customs and Central Excise Department and the assessees so that there could be a separate settlement of tax disputes and collection of revenue would not suffer. The aforesaid provisions came to be introduced pursuant to the recommendations of Wancho Committee, as can be seen from the Judgment of the Apex Court in the case of Alpesh Navinchandra Shah v. State of Maharashtra and others((2007) 2 SCC 777). The said Committee had noted that in the administration of fiscal laws, whose primary objective is to raise revenue, there has to be room for compromise and settlement and a rigid attitude would not only inhibit one time tax evader or an unintending defaulter from making a clean breast of his affairs, but would also unnecessarily strain the investigational resources of the Department in cases of doubtful benefit to Revenue, while needlessly proliferating litigation and holding up collections. Therefore, it was suggested that there should be a provision in law for a settlement with the tax payer at any stage of the proceedings and a provision of this type would facilitate settlement in individual cases and will give an advantage over general disclosure schemes that misuse thereof would be difficult and the disclosure would not normally breed further tax evasion so that each individual case can be considered on its merits and full disclosures not only of the income but of the modus operandi of its build-up can be insisted on, thus sealing off chances of continued evasion through similar practices. 9 7. Section 77 of the Act requires a declaration to be given by the owner of any baggage for the purpose of clearing it. It contemplates a declaration of its contents to the proper officer. Section 127B deals with application for settlement of cases and Section 127C deals with the procedure to be followed before rejecting or allowing the application. This Section requires the Commission to call for a report from the Commissioner of Customs having jurisdiction and on the basis of the materials contained in such report and the circumstances of the case or the complicity of the investigation involved therein to decide the same. Section 127D deals with the power of the Commission to order provisional attachment, etc. Section 127B with which we are concerned reads as follows:- Application for settlement of cases.- (1) Any importer, exporter or any other person(hereinafter in this Chapter referred to as the applicant) may, at any stage of a case relating to him, make an application in such form and in such manner as may be specified by rules, and containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification or otherwise of goods, to the Settlement 10 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 or 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 cases which are pending in the Appellate Tribunal or any court: Provided also that no application under this sub-section 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: (2) Where any dutiable goods, books of account, other documents or any sale proceeds of the goods have been seized under Section 110, the applicant shall not be entitled to make an application under sub-section (1) before the expiry of one hundred and eighty days from the date of the seizure. (3) Every application made under sub-section (1) shall be accompanied 11 by such fees as may be specified by rules. (4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant(emphasis supplied). 8. Sub-Section(1) of Section 123 provides where any goods to which this Section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be -- (a) in a case where such seizure is made from the possession of any person,-- (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. Sub-Section(2) of Section 123 further provides that this Section shall apply to gold and manufactures thereof, watches and any other class of goods which the Central Government may by notification in the Official Gazette, specify. 12 9. A perusal of Section 127B of the Act, particularly the first and third provisos thereof shows that two of the requirements, which would be relevant for our purpose, which were required to be met for an application to be considered by the said Commission are (1) that the applicant had filed a bill of entry in respect of the goods imported and (2) the application ought to be in respect of the goods to which Section 123 did not apply. It appears from the impugned Order that the DRI had requested the officers of Customs to keep the petitioner detained and their efforts were in vain as the petitioner managed to escape. The Commission has accepted the contention of the DRI that the goods seized were the goods other than those which were declared and duty paid thereon vide receipt No.33382. The Commission has also accepted that the show cause notice also related to the goods seized and it had no relevance to the goods to which duty was paid of Rs.1,19,340/- under receipt dated 15-5-2000. The Commission also came to the conclusion that there was ample evidence to indicate that the DRI had seized the goods at the entrance of the airport which was corroborated by the statements recorded and as such the petitioner was not eligible to apply for settlement in respect of the goods seized from the possession of Shri N. B. Dichwalkar and further held that the petitioner did not appear to be the importer or any other person who was eligible to make an application to the Commission under the provisions of Section 127B of the Act. 10. Shri S. P. Kanuga, learned Counsel appearing on behalf of the petitioner contends that the petitioner was the importer of the goods seized and an 13 importer need not necessarily be the owner of the said goods. In support of his contention that the petitioner was the importer of the said goods, learned Counsel refers to a letter dated 22-5-2000 and the receipt(at pages 41 and 42 of the paper book) to show that excess baggage charges were paid by the petitioner and further submits that the petitioner had also filed the declaration(at page 38) and paid the duty thereon vide receipt dated 15-5-2000(at page 39). He further submits that the show cause notice was also issued to the petitioner and all these facts were sufficient to conclude that it is the petitioner who had filed the baggage declaration as well as paid duty which might have been sought to be paid and therefore the petitioner could not have been shut out by the Commission. Learned Counsel has placed reliance on a Division Bench Judgment of this Court in the case of Tata Teleservices v. Union of India (2006(201) E.L.T. 529(Bom.)) and also on a Judgment of the Division Bench of Madras High Court in the case of V. C. Mohan v. Commissioner of Customs(2008(222) E.L.T. 344(Mad.)). 11. On the other hand, Shri J. Vaz, learned Central Government Standing Counsel, on behalf of respondent nos.1 and 3, contends that in order to avail the benefit of Section 127B of the Act it is necessary that a declaration under Section 77 of the Act should have been filed making a truthful disclosure of the contents of the baggage imported or brought in. Learned Counsel further submits that this is a case of smuggling and therefore the benefit of Section 127B could not have been given to the petitioner and that the petitioner paid duty only in respect of the contents of one package and not the others which were seized by the 14 DRI, outside the airport, from the possession of the said Shri N. B. Dichwalkar. 12. We are unimpressed with the submissions made on behalf of the petitioner. It can be seen from the Order dated 10-6-2005 of the Commissioner of Customs and Central Excise, which has now attained finality, that the said N. B. Dichwalkar, though found in possession of the goods seized did not claim the said goods nor did he categorically state that they belonged to or were imported by the petitioner. He has also been penalized under Section 112(a) of the Act for illegal import of goods. It also can be seen that the DRI had received information that two passengers, namely the petitioner and the said Shri N. B. Dichwalkar were arriving at Dabolim airport, Goa, from Singapore via Bombay and were bringing Plasma T.V. sets and also gold consisting of 7 packages and therefore their officers reached the airport and kept a discreet watch and noticed that the said Shri N. B. Dichwalkar came out of the airport with two trolleys loaded with 6 packages and met John Fernandes who directed the said N. B. Dichwalkar and the two trolleys to a waiting white Maruti van and the said Shri Dichwalkar was introduced to the driver of the said van by name Vinod Bhaskar Kanna and thereafter all the three persons loaded the 6 packages brought out from the airport, into the van along with the hand baggage and at that stage the said van was intercepted and the said Shri Dichwalkar could neither produce ticket for the journey nor any other document showing the payment of the customs duty for the packages brought out by him. The order also shows that they waited for the petitioner who did not come out for quite some time and they were informed that 15 the Petitioner was detained by the Customs at the Customs Arrival Hall at the airport, but the fact remains that the petitioner managed to return back to Singapore. In Alpesh N. Shah v. State of Maharashtra and others(supra) the Apex Court stated as follows: “Learned Counsel further invited our attention to the law that has been enunciated by this Court in R. K. Garg v. Union of India which reads as under: “The Court must always remember that 'legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry', ... Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. ... There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses.” 16 13. One of the cases which were considered by the Division Bench in Bipin H. Badani v. Union of India and others(supra), we are told, was a case of Sanjay B. Chawan who had otherwise filed a declaration but had not properly declared the goods and it was conceded before the Commission that his application had fulfilled the conditions of Section 127B of the Act. The learned Division Bench while considering the extent of jurisdiction of the