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2013 (10) TMI 898 - HC - CustomsSettlement of cases - scope of the term adjudicating authority and proper officer - whether recovery proceeding can be said to be a proceeding relating to adjudication as contemplated under Section 127A and 127B of the Customs Act, 1962 - Held that:- A bare reading of the definition of adjudicating authority indicates that any authority competent to pass any order or decision under this Act is to be treated as 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. 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 contained in Section 127B. It is clearly mentioned in Section 127B that any importer, exporter or any other person in respect of a case relating to him may make an application, however, before “adjudication”. Once adjudication has been made no application can be filed to avail benefit of the provisions contained in Section 127B(1). So, we need not confuse with respect to the submission based upon the definition of adjudicating authority as expression “adjudication” has been clearly used and an application under section 127B(1) has to be filed before the adjudication is made - In our opinion as no adjudication proceeding is pending in this case, in our view, Settlement Commission has rightly opined that provision of Section 127B of the Act cannot be invoked for the purpose of settlement of the dues - Decided against assessee.
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