2013 (10) TMI 898

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ision of the settlement commission, hence the intra Court appeal. Sri R.K.Chowdhury, learned Senior Counsel has submitted that definition of the proper officer as amended 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 he 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. He has also submitted that a joint notice was given under Section 28 and when the notice was given for recovery by the same authority i.e. the adjudicating authority, even if the adjudication order has already been passed, it was so passed without observing the basic principle of granting of hearing hence could not be said to be an order of adjudication passed in the eye of law as such it has to be ignored. In any view of the matter, 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 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....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 but excluding the goods not included in the entry made under this Act 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 ca....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....    "142. Recovery of sums due to Government- (1) Where any sum payable by any person under this Act including the amount required to be paid to the credit of the Central Government under section 28B is not paid,-    (a) the proper officer may deduct or may require any other officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other officer of customs; or    (b) the Assistant Commissioner of Customs or Deputy Commissioner of Customs may recover or may require any other officer of customs to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the Assistant Commissioner of Customs or Deputy Commissioner of Customs or such other officer of customs; or    (c) if the amount cannot be recovered from such person in the manner provided in clause (a) or clause (b)-        (i) the Assistant Commissioner of Customs or Deputy commissioner of Customs may prepare a certificate signed by him specifying the amount due from such person and send it to the ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....s adjudicating authority but does not include the Board [Commissioner (Appeals)] or Appellate Tribunal, as the case may be. Proper Officer has been defined separately in relation to any functions to be performed under the Act and there is specific assignment of those functions by the Board. The assignment of the functions by the Board is necessary to a proper officer. Any order or decision under this act to be passed by adjudicating authority has to be understood in the context it has been used and cannot include orders passed by proper officer in recovery proceeding when adjudication is over. Section 28 deals with payment of duties and interest contemplated under sub-section 1 thereof. There is a distinction between adjudicating authority and the proper officer as defined in section 2(1) and 2(34) of the Act respectively. Proper officer is the one who is assigned the functions under the Act. 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 imcumbent to seek the benefit of the provisions c....