BADAR DURREZ AHMED, J.

CM 17713/2015

Allowed subject to all just exceptions.

W.P.(C) 8354/2015 & CM 17712/2015

1. This petition is directed against the final order No.F-2348/CUS/ 2015-SC (PB) dated 17.04.2015 passed by the Custom and Central Excise Settlement Commission, whereby the respondent No.1’s settlement application was finally decided under Section 127C (5) of the Customs Act, 1962 in the following manner:-

“9. In the instant case, the goods seized within a Customs area and, therefore, there is no doubt regarding the fact that they are imported. There is also an admission of illicit import by the applicant. There is, therefore, no doubt regarding the fact that they are imported. The shifting of burden of proof as contemplated under section 123 of the Customs Act, 1962 is not required. The settlement application is, therefore, maintainable on both the counts. Moreover, these issues are already settled in the order passed by the Commission in the matter of Shri Ashok Kumar Jain and the said order was upheld by the Hon'ble Delhi High Court and the Hon'ble Supreme Court.

9A. The Bench has carefully considered the material available on record and submissions made by the applicant at the time of hearing. The Bench observes that the applicant has cooperated in the settlement proceeding and made full and true disclosure of their duty liability. The applicant has admitted and deposited Rs. 4,86,305/- as Customs duty. In view of the above and considering the facts and circumstances of the case, the Bench finally settles the case under Section 127C (5) of the Customs Act, 1962 on the following terms and conditions:-

Customs Duty: The Customs Duty in this case is settled at Rs. 4,86,3051-. An equivalent amount already deposited by the applicant is ordered to be appropriated towards settled amount of duty. Nothing further remains to be paid on this count.

Interest: The interest amount is settled at Rs. 49,200/- (Rupees forty nine thousand two hundred only). The interest amount of Rs. 49,200/- already paid by the applicant is ordered to be appropriated against the settled amount of interest. Nothing further remains to be paid on this count.

Penalty: In the facts and circumstances of the case, Bench imposes a penalty of Rs. 75,000/-(Rupees seventy five thousand only) on the applicant under the provisions invoked in the SCN and grants him immunity from penalty in excess of the said amount.

Fine: The Bench orders a sum of Rs. 75,000/- (Rupees seventy five thousand only) to be paid as fine in lieu of confiscation.

The gold kada and chain collectively weighing 466.90 gms. should be released to the applicant after payment of redemption fine and penalty.

Prosecution: Subject to the payment of the aforesaid amounts, the Bench grants immunity to the applicant from prosecution under the Acts and Rules made thereunder insofar as this case is concerned.

11. The above immunities are granted under Section 127H (I) of the Act. Attention of the applicant is also drawn to sub-section (2) & (3) of the Section 127H of the Act. This order shall be void and immunities withdrawn if the Commission finds, at any time, that the applicant has concealed any particular material to the settlement or has given false evidence or had indulged in fraud and mis-representation of facts for obtaining the settlement order.

12. A copy of this order is given to the applicant herein and to the jurisdictional Commissioner for their use in the implementation of this Order. No one should use this Order in any other manner or for any other purpose without the written permission of the Commission.”

2. Mr Dubey, the learned counsel appearing on behalf of the Commissioner of Customs, states that the application of the respondent No.1 could not have been proceeded with and no final settlement could have been passed by the Settlement Commission because the subject matter pertained to ‘gold’. He placed reliance on the decision of this Court in the case of Additional Commissioner of Cust