The express bar in the third proviso to Section 127B(1) read with Section 123 of the Customs Act prohibits the Settlement Commission from entertaining applications related to goods to which Section 123 applies, including gold.

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition is being filed by the Revenue seeking the quashing of the order dated 16.05.2014 passed by the Customs and Central Excise Settlement Commission, New Delhi (hereinafter referred to as ‘the Settlement Commission’) under Section 127C(5) of the Customs Act, 1962 (hereinafter referred to as the ‘said Act’).

2. The short point raised by the learned counsel for the petitioner/ Revenue is that the application filed by the respondent for settlement of its case could not have been entertained by the Settlement Commission because there was an express bar contained in the third proviso to Section 127B(1) of the said Act.

3. Before we examine that, it would be necessary to point out that the respondent had, as part of his baggage, brought into India 6452.600 gms of gold. He did so on 16.06.2013 while arriving at the Indira Gandhi International Airport, Delhi from Dubai by flight No. EK-514. While the respondent was trying to cross the green channel, a Customs Officer intercepted him and on being asked by the Customs Officer as to whether he carried any dutiable goods, the respondent replied in the negative and, on demand, produced the disembarkment card. In the disembarkment card, the column of dutiable goods was left blank. The baggage of the respondent as also his person was searched and, on examination, it was found that the respondent was carrying gold wrapped in brown tape which was tied to his waist by a black belt. The extent of gold that was found on his person was 6452.600 gms and the same was seized by the Customs Officer. Thereafter, various proceedings took place and a show cause notice was issued etc. We are not concerned with the rest of the details.

4. The respondent made an application, purportedly under Section 127B of the said Act, on 12.11.2013. The Settlement Commission, after going through the various steps, passed the impugned order dated 16.05.2014 under Section 127C (5) of the said Act.

5. As point out above, the issue raised by the learned counsel for the petitioner/ Revenue is that the respondent could not have moved an application under Section 127B before the Settlement Commission and the Settlement Commission did not have jurisdiction to go into the matter at all. The learned counsel submitted that this was in view of the express bar contained in Section 127B(1) third proviso read with Section 123 of the said Act. Section 127B(1) to the extent relevant reads as under:-

“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 or otherwise 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, or a bill of export, or made a baggage declaration, or a label or declaration accompanying the goods imported or exported through post or courier, as the case may be, and in relation to such document or documents, 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 three lakh rupees; and

(c) the applicant has paid the additional amount of customs duty accepted