By TIOL News Service

KOLKATA, OCT 20, 2013: THE petitioner filed an application before the Settlement Commission consequent to the recovery proceedings initiated by the department under Section 142 of the Customs Act, 1962 and the same was dismissed by the Settlement Commission as the adjudication order had already been passed. The Writ Application against the order of Settlement Commission was also dismissed by the Single Member Bench of the High Court. The Petitioner is now in appeal against the dismissal order.

The petitioner argued that definition of the proper officer is wide and recovery proceeding is pending before the proper officer. Such proceeding has to be taken to be one pending before the adjudicating authority and relied upon the definition of the adjudicating authority under Section 2(1) and also that of the proper officer defined in Section 2(34) of the Act. The recovery proceeding has to be taken to be the one pursuant to the order passed by the adjudicating authority as notice for both was common. The interpretation of Section 127A has to be made to cover proceedings where an order of adjudication has been passed by adjudicating authority and its execution is pending before the proper officer. It nonetheless remains the order of adjudicating authority pertaining to which an incumbent can approach the Settlement Commission within the purview of Sections 127A and 127B of the Customs Act, 1962.

After hearing both sides, the High Court held:

The provisions contained in Section 127B clinches the 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 incumbent 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 .

The definition of ‘case' as defined in Sections 127A( b) also makes it clear that the proceeding must be pending before an adjudicating authority on the date on which an application under sub-section 1 of Section 127B is made. When both the provisions 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.

Accordingly, the High Court dismissed the appeal.

(See 2013-TIOL-819-HC-KOL-CUS)