Kalyan Jyoti Sengupta, J. - (1.) Both the aforementioned writ petitions are taken up together for hearing, as the issues involved in both the matters are identically same. By the first mentioned writ petition, the petitioner wants to un-settle the statutory settlement made by the learned Settlement Commission, Customs and Central Excise, New Delhi by its final order dated 8th May, 2003, whereas, by the second writ petition, the petitioners want implementation of the same order and direction of the Settlement Commission.
(2.) Briefly stated fact is as follows : The respondent No. 2 had imported duty free Non-alloy Steel Billets and Non-alloy Steel Wire Rods, against advance licence under the DEPB scheme under Notification No. 43/2002-Cus., dated 19th April, 2002. The said imported goods landed at the customs check-post and the Bills of Entries were filed showing 'nil duty' liability. Upon investigation it was found that the said goods were illegally disposed of instead of using the same as input materials for exportable products. It is the pre-condition for use of the advance licence that corresponding export obligation has to be fulfilled. As such show cause notice was issued under Section 124 of the Customs Act, 1962. After issuance of the show cause notice, the importers concerned filed an application under Section 127B of the Customs Act, 1962, for settlement of the case, before the Customs and Central Excise Settlement Commission, being the respondent No. 1. The aforesaid application was heard in two stages. At the admission stage, the respondent took a plea that having regard to the facts and circumstances of this case, the respondent No. 1 ought not to have entertained the application under Section 127B as the conditions mentioned therein have not been fulfilled, By an order with detailed reasons, the respondent No. 1 rejected the plea of jurisdiction and found that importers have fulfilled all the conditions to maintain the application and, therefore, decided to hear the application on merit, at subsequent stage.
(3.) It is pertinent to mention that the said order dated 20th March, 2003, passed while admitting the application, has not been challenged in this writ petition. The final order dated 5th September, 2003 [2003 (162) E.L.T. 770 (Sett. Comm.)] has been challenged. The learned Commission found on merit that the importer applicant had filed five Bills of Entry and claimed clearance of the goods at 'nil rate' of duty, on the strength of the aforesaid notification. It was further found that the applicants have admitted a liability of Rs. 11,36,95/189.88p. This amount is in relation to the amount of duty foregone, consequent upon the assessment made in the relevant five Bills of Entry because of exemption. Admittedly, the applicants have not fulfilled export obligation. The fulfilment of such obligation could be total as in this case or could be partial as in some other case. The commission observed that it could not be concluded that since the applicants have filed a Bond, binding themselves to pay differential duty, consequent upon non-fulfilment of conditions stipulated in Notification No. 43/2002-Cus., the assessment has been made at tariff rate. It cannot be said that the levy, assessment and collection are made at the amount as indicated in the Bond. The tariff rate of duty is one thing and the effective rate is another, The Commission has also interpreted the provision of Section 127B and relied on number of decisions, rendered by the Commission itself in other matters.;