TaxTMI 
TaxTMI 
2015 (11) TMI 142
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....002 - Annexure - A alleging certain violations of the provisions of the Customs Act, 19 62 and demanding duty and interest thereon from the petitioner. Writ petitioners, before submitting reply to the show cause notice, approached the Settlement Commission by filing an application under Section 127B of the Customs Act, 1962 (for short 'Act') for adjudicating the said application. The Settlement Commission held that application is not maintainable in view of the third proviso to Section 123 of the Act and as such, dismissed the application as not maintainable. Aggrieved by this order, petitioners sought for review of the same by filing a miscellaneous application. On 19.9.2003, the Settlement Commission, after considering the rival contentions, held that it does not have power to re view its own order and though petitioners were seeking f or recall of the order, in disguise it was an order se eking for review and as such, dismissed the miscellaneous application vide order dated 25.11.2003 - Annexure - J. Being aggrieved by these two orders, writ petition came to be filed in WP No.5463/2004. earned Single Judge, after having noticed the contentions raised by the parties, has affirmed....
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....tend that Miscellaneous Application came to be filed by the petitioner to recall the order dated 21.08.2013 passed by the Settlement Commission and same was also dismissed rightly by arriving at a conclusion that it has no power to re view its own order and for setting aside these two orders, writ petition was filed, which also came to be dismissed on the ground that "goods" imported by petitioner were notified under Section 123 of the Customs Act. He would elaborate his submission by contending that conclusion arrived at by the Settlement Commission as regards the subject "goods" being covered under Section 123 of the Act is in consonance with material evidence available on record and as such, learned Single Judge has rightly dismissed the writ petition. On these grounds, he prays for dismissal of the writ appeal In support of his submission he has relied upon the following judgments: * Commissioner of Customs, Bangalore vs. A. Mahesh Raj- 2006 (195) E.L.T. 261 (Kar. * Yashavi Enterprises vs. Cus. & C.EX. Settlement Commission, Chennai-2015 (315) E.L.T. 490 (Mad.) * Platinum Exports vs. Union of India- 2010 (254) E.L.T. 275 (Bom.) * Optigrab ....
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....to be issued demanding duty, for settlement of which, writ petitioner filed application under Section 127B of the Act before the Settlement Commission. (c) The Settlement Commission after considering the submissions from both the sides has held that 3rd proviso to sub-section (1) of Section 127B of the Act is attracted since major portion of the duty demanded relates to "Polyester Satin Fabrics", "Polyester Taffeta Fabrics", "100% Nylon Fabrics and Polyclass" which are goods notified under Section 123 of the Act, since these goods finds a place in the notification No.204-CUS dated 20.07.1984 which covers "Fabrics made wholly or mainly of synthetic yarn" . In that view of the matter, Settlement Commission arrived at a conclusion that no application can be made in relation to goods to which Section 1 23 applies even if such goods have been imported licitly by order dated 21.08.2003 Seeking recall of this order, a Miscellaneous Application was filed. The Settlement Commission rejected the said application for want o f jurisdiction namely, on the ground that it has no power to review its order 7. A bare reading of the statutory provision name ly Section 127B of the Customs ....
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....ement Commission. On the other hand, the Bills of Entry appended to the show cause notic e issued to the petitioners would indicate that these are notified goods under Section 123 of the Act It is because of this precise reason, Settlement Commission having taken note of the fact that goods in question would fall within the definition of goods as notified under Section 123 of the Act, has held that the 3rd proviso to sub-sec.(1) of Section 127B is attracted or in othe r words, same would come into play and as such, held that application is not maintainable. In that view of the matter, we are of the considered view that the application filed by the writ petitioners seeking f or settlement of dispute before the Settlement Commission by invoking Section 127B of the Act, was not required to be entertained by the Settlement Commission and as long as the ingredients of Section 123 are attracted and application of the petitioner would squarely fall within 3rd proviso of Section 127B of the Act 9. Taking note of these aspects, learned Single Judge has rightly arrived at a conclusion that this would not be a case where the exercise of extraordinary jurisdiction by the writ Court was call....