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6. Mr. V.T. Gopalan, learned Additional Solicitor General appearing on behalf of the petitioner would submit that the Commission is empowered to entertain and decide an application in respect of "a case" as defined under Section 127A(b) of the Act. As per the said Act, "Case" means any proceeding under the Act or any other Act for the levy, assessment and collection of customs duty. The case on hand cannot be considered as "a case" within the meaning of Section 127A of the Act as it does not relate to levy, assessment or collection of customs duty and in respect of short-levy on account of mis-classification or otherwise of goods. Learned Counsel also submitted that when it was found that the goods other than declared in the Bill of Entry were imported and the application for settlement has been made after the mis-declaration was detected, it would be a case of smuggling, and the Commission would have no jurisdiction to entertain the application for settlement of case as such issue would fall outside the ambit of the powers of the Commission under Section 127B of the Act. Learned Additional Solicitor General would further submit that the application has been filed only after a show cause notice for confiscation was issued under Section 111(i) and (m) of the Act and in view of the said notice, it could be seen that the issue does not relate to any levy, assessment or collection of customs duty to sustain an application under Section 127B of the Act.

(2) A copy of every order under Sub-section (1) shall be sent to the applicant and to the Commissioner of Customs having jurisdiction."

There cannot be a dispute that the powers of the Settlement Commission shall be restricted only to some of those areas enumerated under Chapter XIVA of the Customs Act and not beyond that. Under Section 127A(b) of the Act, "Case" means any proceeding under this Act or any other Act for the levy, assessment and collection of customs duty. Under Section 127B of the Act, any importer, exporter or any other person may, at any stage of a case relating to him make an application to the Settlement Commission 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 in respect of which he admits short-levy on account of mis-classification or otherwise of goods. In order to avail the benefit of filing of an application under Section 127A of the Act, an importer, exporter or any other person should first establish that the case pleaded before the Commission is in respect of levy, assessment and collection of customs duty, which may on account of mis-classification or otherwise of goods.

13. Coming to the facts of this case, a notice was served on M/s. Goutham Enterprises, informing them to clear the consignment. M/s. Goutham Enterprises, in their letter dated 19-7-2000 have specifically pleaded that they have not imported any consignment, as they are not importers. It was their specific case that one Janakiraman, the fourth respondent had collected delivery orders of M/s. Goutham Enterprises stating that he would submit the authorization letter to the Department. When the customs department came to know about the disclaim by the M/s. Goutham Enterprises, through its Special Intelligence and Investigation Branch, Chennai, the department found that as against 300 Acer CD ROM Drive as declared in the Bill of Entry, the consignment consisted of 736 pieces of various models of mobile phones with chargers also. A voluntary statement was given by the second respondent before the officers of the Department that the consignment was intended to the third respondent wherein the second respondent was the Managing Director. Only after the above fact was detected and found out, the second respondent filed the application before the Commission on the ground that there was some mis-classification of the goods. Further it is seen that the second respondent had imported the goods in the name of M/s. Goutham Enterprises without their knowledge and consent. He did not also disclose the goods in the consignment till the same was found out by the department. From the facts as se.en above, I am of the view that it is not the case of mis-classification and it is the case of mis-declaration and the case of smuggling. The Supreme Court in the case of Collector of Customs, New Delhi v. Shaila Kapoor held that where the Bill of Entry showing value of the machinery without including therein the value of accessories and without even disclosing that any parts or accessories in addition to the machines were being imported it was a case of smuggling. In such circumstances, the accessories found in the consignment, held, were sought to be smuggled and were rightly confiscated. Applying the said ratio, it is to be held that what is not declared in the Bill of Entry could be called as goods smuggled and the issue cannot be called as a mis-classification as contended by the learned Counsel for the second respondent to bring the "Case" under the definition of Section 127A(b) of the Act and to sustain the application under Section 127B of the Act.

16. What was held by the Supreme Court in the above judgments is existence of the power of the Settlement Commission to entertain an application from a person who in act of bona fide mis-classified the goods imported and had disclosed the same before the Department even before the Department would investigate and detect the concealment. However, in a case where the concealment itself has not been disclosed, till such time, it was detected by the authorities through a detailed investigation after putting their efforts to find out as to who is the cause for such concealment or smuggling or the fraud played on the department, the importer cannot be considered as a person bona fidely mis-classified the goods and thereby resorting to the remedy of settlement by applying to the Settlement Commission. In this case, factually the second respondent did not disclose the mobile phones before the exercise made by the Special Intelligence Investigation Team. The team on investigation found that it was a case of mis-declaration and as an act of smuggling. Further, the scope of application under Section 127B of the Act should be with reference to either levy, assessment or collection of customs duty and short-levy of mis-classification or otherwise of the goods. Since I have found on the facts and circumstances of the case that it is not "a case" on account of mis-classification, but on the ground of mis-declaration and as it does not relate to levy, assessment or collection of customs duty, the application would fall outside the powers of Settlement Commission to entertain the same under Section 127B and Section 127C of the Act. For the same reason, the submission of the Counsel that the goods are not restricted from being imported and they are liable to be released on redemption fine has also no relevance as the goods found in the consignment were smuggled and the second respondent is liable to be prosecuted under COFEPOSA.