Sanjib Banerjee, J.@mdashThe writ petitioner assails an order passed by the Settlement Commission refusing to receive the petitioner''s application for a settlement of the claim. By a notice dated December 29, 2008, the Customs authorities required, inter alia, the petitioner to show cause as to why basic customs duty in excess of about Rs.1.17 crore should not be recovered from the noticees u/s 28 of the Customs Act, 1962 for removing 36 MT Mulberry Raw silk or raw silk from the Falta Special Economic Zone without payment of customs duty in violation of a notification of May 1, 2006 read with the relevant scheme. Following the reply to the show cause notice, adjudication proceedings commenced and culminated in the claim as made being maintained. The petitioner and others affected had a choice of assailing such order before a statutory forum as recognised in the Act. Instead, the petitioner approached the Settlement Commission under Chapter XIV- A of the Act.
2. The Settlement Commission refused to entertain the application and it is such order which has been challenged by way of the present petition. The petitioner says that the Settlement Commission failed to appreciate the wide import of the expression "any proceeding" that appears in amended section 127-A (b) of the Act.
3. Subsequent to the amendment effected in or about the year 2007. "case" in the relevant chapter of the Customs Act is defined in the section 127-A (b) as follows:
127-A. Definition.-In this Chapter, unless the context otherwise requires
(a)......
(b) "case" means any proceeding under this Act or any other Act for the levy, assessment and collection of customs duty pending before an adjudicating authority on the date on which an application under sub-section (1) of section 127B is made:
4. There is a proviso to the definition which is not relevant in the present context.
5. The petitioner says that in view of the wide definition of the word "case" and it including all proceedings whether under the Customs Act or any other statute for the levy, assessment and collection of customs duty, till such time that the amount that the petitioner was found liable to pay had been realised by the authorities from the petitioner, the petitioner had the right to apply for a settlement of the claim.
6. The Settlement Commission noticed the change in the law and in the new definition having replaced the following definition for "case" in the relevant section:
(b) "case" means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection which may be pending before a Central Excise Officer or Central Government on the date on which an application under sub-section (1) of section 127B is made:
7. The Settlement Commission found that upon the change in the definition, the operative words were "pending before an adjudicating authority on the date on which an application... is made" and took the view that since nothing was pending qua the matter as on the date of the settlement application being lodged, the Settlement Commission did not have the authority to receive the same. In the discussion in the order impugned, the Commission noticed a judgment relied upon by the petitioner reported at 2008(3) Cat LT HC 462 and a judgment of the Delhi High Court. The Commission found that neither case was applicable in view of the amendment to the relevant provision and held that at the stage at which the petitioner had approached the Settlement Commission, such proposal could not be received.
8. There is no infirmity in the order of the Settlement Commission that calls for any interference in this jurisdiction.
9. To begin with, the decision of this Court referred to above was rendered on an excise matter and the relevant provision in section 32 of the Central Excise Act. 1944 was in pari materia with the definition of "case" prior to the amendment to the Customs Act, 1962. The Delhi High Court judgment had been rendered on a customs matter but on the basis of the definition as it stood prior to the amendment.
10. Upon the amendment to the relevant provision in the Customs Act, the stage at which a settlement proposal or request can be received has been considerably whittled down. There is a fundamental basis as to why the provision is more restricted in its operation. It would defy logic and reason if persons as the present petitioner take a chance to have their matter or claim adjudicated before an authority under the statute and, upon failing in such misadventure, offer to pay a reduced amount than the amount found due. It is evident that the fundamental basis in restricting of the relevant provision is to allow a bona fide person to make a settlement proposal prior to taking a chance to have the claim adjudicated. But upon the claim being adjudicated and merely because the recovery has not been completed, a person would not be entitled to offer a lesser amount than what has been adjudicated to be due from him. The writ petition is without any merit. WP No. 382 of 2012 is dismissed.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
