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TMI Blog2019 (1) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... goods referred to in Section 123(2) is excluded. This court is of the opinion that the impugned order cannot be sustained which is hereby set aside - The matter is remitted to the concerned Adjudicating Officer, who shall proceed further and issue notice in the proceedings to be held thereunder. - W.P. (C) 8881/2015 - - - Dated:- 16-1-2019 - MR. S. RAVINDRA BHAT AND MR. PRATEEK JALAN JJ. Petitioner Through: Mr. Harpreet Singh, Senior Standing Counsel with Ms. Suhani Mathur, Advocate Respondent Through: Ms. Alisha Panda, Mr. Aadil Singh Boparai, Advocates O R D E R S. RAVINDRA BHAT, J. (ORAL) 1. The Customs Authorities have filed these proceedings questioning the decision of the Settlement Commission made upon an application filed by the respondent. It is contended that the Settlement Commission could not have, by virtue of third proviso to Section 127B [read with Section 123(2)] of the Customs Act, lawfully entertained the application and proceeded to pass orders settling the issues urged. 2. The respondent, who is a former United Nations official, arrived at IGI Airport, Delhi, on 04.05.2014; carrying 6 gold bars weighing 1832.4 gms, valued at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Komal Jain v. Union of India and Another: 2014 (304) ELT 675 (Del). In Ashok Kumar Jain (supra), the issue of Section 123 has not been considered at all. Insofar as the decision in Komal Jain (supra) is concerned, the Division Bench itself, in paragraph 21, observed that the issue with regard to the applicability of Section 123 of the Act by way of the third proviso to Section 127B was left open and it was for the Settlement Commission to examine the same, if such a point was raised, in accordance with law. In the present case, we find that the point with regard to the third proviso to Section 127B(1) read with Section 123 of the said Act had been specifically raised by the Revenue and the same has been considered by the Settlement Commission and has been rejected. We have already indicated above that the rejection by the Settlement Commission is not in accordance with law. A plain reading of the provisions clearly indicates that an application under Section 127B cannot be made in respect of, inter alia, gold, which is specifically an item to which Section 123 applies. We may point out that there is no question of examining the provisions of Section 123(1) as also its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 127B prescribes what ought to be the contents of the application and the procedure therefor. To the extent relevant, it is reproduced below: Section 127B in the Customs Act, 1962 127B Application for settlement of cases. - (1) Any importer, exporter or any other person (hereinafter referred to as the applicant in this Chapter) may, in respect of a case, relating to him make an application, before adjudication to the Settlement Commission to have the case settled, 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, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification, under-valuation or inapplicability of exemption notification 254 [or otherwise] and such application shall be disposed of in the manner hereinafter provided: Provided that no such application shall be made unless,- (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification or otherwise of goods, to the Settlement Commission to have the case settled and such application shall be disposed of in the manner hereinafter provided: Provided that no such application shall be made unless- (a) the applicant has filed a bill of entry, or a shipping bill, in respect of import or export of goods, as the case may be, and in relation to such bill of entry or shipping bill or a show cause notice has been issued to him by the proper officer; (b) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees: Provided further that no application shall be entertained 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 appli ..... 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