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TMI Blog2013 (10) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... issue with respect to the question whether the recovery proceedings pursuant to the order of adjudication which has been passed can be said to be covered for the purpose of enabling an imcumbent to seek the benefit of the provisions contained in Section 127B. It is clearly mentioned in Section 127B that any importer, exporter or any other person in respect of a case relating to him may make an application, however, before “adjudication”. Once adjudication has been made no application can be filed to avail benefit of the provisions contained in Section 127B(1). So, we need not confuse with respect to the submission based upon the definition of adjudicating authority as expression “adjudication” has been clearly used and an application under section 127B(1) has to be filed before the adjudication is made - In our opinion as no adjudication proceeding is pending in this case, in our view, Settlement Commission has rightly opined that provision of Section 127B of the Act cannot be invoked for the purpose of settlement of the dues - Decided against assessee. - APO No. 262 of 2012 & WP No. 382 of 2012 - - - Dated:- 11-2-2013 - Arun Mishra And Joymalya Bagchi, JJ. For the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Revenue has relied on Section 127B and Section 142 of the said Act. On a plain reading of the said Sections it is clear that the recovery proceedings are not adjudication proceedings. It is only before an order of adjudication was passed under provision of Section 28 the Settlement Commission can be approached. The provisions contained in Section 127A read with Section 127B make it clear that there is no room to accept the submissions raised by the appellant. The adjudicating authority has been defined in Section 2(1) of the Act definition is quoted below: 2(1) adjudicating authority means any authority competent to pass any order or decision under this Act, but does not include the Board [ Commissioner (Appeals)] or Appellate Tribunal. The proper officer has been defined in Section 2(34) of the said Act same is quoted below: 2(34) proper officer , in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the [Commissioner of Customs]. Section 127A(b) contains the definition of case in Chapter XIV-A dealing with the settlement of the cases. The case has been defined in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Settlement Commission under this subsection in cases which are pending in the Appellate Tribunal or any court: Provided also that no application under this subsection 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 (61 of 1985) has been committed: Provided also that no application under this subsection shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975). (1A) Notwithstanding anything contained in subsection (1), where an application was made under subsection (1) before the 1st day of June, 2007 but an order under sub section (1) of section 127C has not been made before the said date, the applicant shall within a period of thirty days from the 1st day of June, 2007 pay the accepted duty liability failing which his application shall be liable to be rejected.] (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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus, if any, to such person. Provided that where the person (hereinafter referred to as predecessor), by whom any sum payable under this Act including the amount required to be paid to the credit of the Central Government, under section 28B is not paid, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by the proper officer, after obtaining written approval from the Commissioner of Customs, for the purposes of recovering the amount so payable by such predecessor at the time of such transfer or otherwise disposal or change. (2) Where the terms of any bond or other instrument executed under this Act or any rules or regulations made thereunder provide that any amount due under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions are read together it is apparent that there has to be pendency of the proceeding before the adjudicating authority and before adjudication an application under section 127B(1) can be filed. The proceeding for recovery under Section 142 does not contemplate any adjudication order by adjudicating authority, such proceedings are before proper officer. The submission raised by the learned Counsel for the appellant cannot be accepted. We find no merits in submission that as no opportunity of hearing was granted before order of adjudication was passed the order has to be ignored. Firstly it is apparent that notice was issued. Secondly once order of adjudication has been passed legality of such order cannot be adjudged by Settlement Commission and Settlement Commissioner is competent to entertain application before adjudication. Hence submission made has no legs to stand and is repelled. In our opinion as no adjudication proceeding is pending in this case, in our view, Settlement Commission has rightly opined that provision of Section 127B of the Act cannot be invoked for the purpose of settlement of the dues. We find no infirmity in the order passed by the Single Judge affirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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