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2019 (11) TMI 454

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..... MUMBAI] has proceeded to entertain the application based on the interpretation that the word 'case' utilised in the proviso should assume the same meaning as the definition of the word under the Customs Act 1962 which means 'any proceeding under this act or any other act for the levy, assessment and collection of customs duty' as contra distinguished from proceedings for prosecution. Further, the provisions of Section 127H of the Act empower the Commission to grant immunity to prosecution under either the Customs Act, the IPC or any other Central Act, in such cases where prosecution has not been instituted before the date of receipt of the Application for settlement by the Commission. Had the commission issued notice to the .....

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..... nvoking the second proviso to Section 127B of the Act. 4.Heard learned counsel appearing for the petitioner and learned Additional Government Pleader for the respondent. 5.Section 127B of the Act, including the second proviso thereto, reads as follows: 'Section 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 i .....

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..... ounsel for the respondent, the proviso should be read literally so as to cover both cases of assessment as well as of prosecution. 9.The learned counsel for the respondent also tentatively states that there has been non-disclosure of pendency of proceedings for prosecution before the Special CBI Court, before the Commission. However, at paragraph-20 of the settlement application, the petitioner has made specific reference to the prosecution launched against the petitioner by the Central Bureau of Investigation in Special CBI Court, setting out various details in connection with the same. Thus there is no merit in the argument that the petitioner has approached the settlement commission without making a full and true disclosure in this regar .....

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..... here is no proceedings for the levy, assessment and collection pending with the Appellate Tribunal or any Court. That is to say that even if the proceedings for the prosecution have been instituted before the date of receipt of the application under Section 127B, yet the application can be entertained by the Settlement Commission. 9.A reading of Section 127H of Customs Act, 1962 would support the above arguments. Section 127H of Customs Act, 1962 gives the power to the Settlement Commission to grant immunity from prosecution for any offence under this Act or the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and such immunity may be either in whole or in part from the imposition of any penalty, fin .....

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..... m proceedings for prosecution. Further, the provisions of Section 127H of the Act empower the Commission to grant immunity to prosecution under either the Customs Act, the IPC or any other Central Act, in such cases where prosecution has not been instituted before the date of receipt of the Application for settlement by the Commission. 12.I prima facie agree with the rationale of the aforesaid order. Had the commission issued notice to the petitioner prior to hearing the matter, it would perhaps have been persuaded to adopt a reasoning similar to that of the Coordinate Bench, as above. However this has not been done. 13.The impugned order, in the light of the discussion above, is set aside. The petitioner will appear before the respondent o .....

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