EXOTICA GLOBAL PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) The Court: The intra Court appeal has been preferred questioning the legality of the dismissal of the writ application passed by Single Bench on 10-8-2012 EXOTICA GLOBAL PVT LTD V/S UNION OF INDIA AND ORS, 2012 284 ELT 19 pertaining to question whether recovery proceeding can be said to be a proceeding relating to adjudication as contemplated under Sections 127A and 127B of the Customs Act, 1962 (hereinafter referred to as the Act). Pendency of adjudication proceeding is necessary in order to approach the Settlement Commission. The settlement commission rejected the application filed for the purpose of the settlement vide order dated 13-4-2012 on the ground that the recovery proceeding cannot be said to be a proceeding as contemplated under Section 127A and 127B of the Act. The Single Bench has agreed with the decision of the settlement commission, hence the intra Court appeal.

(2.) 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 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.

(3.) Mr. N.C. Roy Chowdhury, learned Senior Counsel appearing on behalf of the 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.