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TMI Blog2001 (2) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion under this sub-section in cases which are pending in the Appellate Tribunal or any Court. It was further argued that the definition of case clearly states that proceedings for the prosecution is not covered by definition of case and therefore second proviso to Section 127B(1) cannot be considered as a bar for making an application for settlement under Section 127B, as no case of the Applicant is pending in the Tribunal or any Court. Section 127H(1) provides no immunity for cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application in the Settlement Commission. The submission was that the second proviso to Section 127B(1) is only applicable in the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate argued that for fulfilment of sub-section (3) of Section 127C, the Customs might have sold the goods only after ascertaining the duty amount and all other expenses, hence it may be considered as a deemed payment of duty. Since Customs has sold the goods the duty is lying with them, which may be adjusted for admitted duty liability of the Applicant. The Department has sold the goods without informing the Applicant. Regarding co-noticees the learned Advocate submitted that Shri Suresh Chand Aggarwal is the Sole Proprietor of M/s. Shri Agarwal Trading Co., who have filed the application for settlement. It is a well settled legal position that a proprietary firm and its proprietor are one and the same entity and they are not separate legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion wanted the Revenue to give details of the sale proceeds. 5. The learned Advocate further submitted that he could not get release of the goods provisionally because the duty amount, the Bank Guarantees and P.D. Bond were very exorbitant. 6. The Commission has gone through the application filed by the Applicant, reports received from the Department and record of personal hearing. It is seen that prosecution under Section 135 of the Customs Act, 1962 has already been launched against the party which is pending in the Hon ble Chief Metropolitan Magistrate s Court. 7. In the above view of the matter the Commission deliberated as to the admissibilities of the applications filed by the Applicants. The Commission noticed that the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Settlement Commission under Section 127B so long as there is no proceedings for the levy, assessment and collection pending with the Appellate Tribunal or any Court. That is to say that even if the proceedings for the prosecution have been instituted before the date of receipt of the application under Section 127B, yet the application can be entertained by the Settlement Commission. 9. A reading of Section 127H of Customs Act, 1962 would support the above arguments. Section 127H of Customs Act, 1962 gives the power to the Settlement Commission to grant immunity from prosecution for any offence under this Act or the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and such immunity may be eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of receipt of the Application under Section 245C . 10. This proviso was inserted in Chapter XIXA of the Income-tax Act, with effect from 1-6-1987. There was no similar provision existing earlier to the said insertion in the said Act. These provisions under Direct Tax law was considered by the Hon ble Madras High Court in the case of Kothari and Sons and Others v. N. Subramanian, Income-tax Officer, Central Circle XIII reported in (1992) 196-ITR-0082. In the said decision the Hon ble High Court has referred to the following decisions : (1) CIT v. B.N. Bhattacharjee - (1979) 118 ITR 461 (SC) (2) Harbans Singh v. Union of India - (1998) 171 ITR 23 (3) R.I. Chadha v. ITO - (1987) 168 ITR 591 (4) Ashvin Kumar Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Settlement Commission would be sparingly used in deserving cases. The object was to ensure that the settlement was fair, prompt and independent given a high level machinery for administering the provision. 12. In view of the aforesaid the Commission finds that the Applicant fulfils the conditions stipulated in Section 127B of the Customs Act, 1962. The Commission therefore allows the application to be proceeded with under sub-section (1) of Section 127C of the Customs Act, 1962. 13. The Applicant wanted the duty amount to be adjusted from the amount lying in the custody of the Department from the sale of goods. 14. The Commission has gone through the provisions of Section 150 of Customs Act, 1962 which reads as under : Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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