TMI Blog2023 (4) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... alment of particulars of duty liability. (ii) Conviction of an offence and (iii) Remand of the case to the proper officer under Section 127I. The phrase ' any other matter ' is relevant here. While the petitioner emphasises upon the word ' other ' to state that the bar applies only to a cause of action different from that in regard to which the first application was filed, is disagreed. The phrase ' any other matter ', in my considered view, would bar an assessee from approaching the Settlement Commission ever, in the three situations set out under clauses (i) (ii) (iii) in Section 127L(1). This is by way of a caution/deterent, to ensure that an assessee who approaches the Settlement Commission comes with a full and true disclosure placing all cards on the table in the spirit in which that Chapter must be seen to apply - In the present case, the case of the petitioner has been found to attract penalty and a sum of Rs.4,50,000/- imposed. In such an event, the bar under Section 127L would apply on all fours. Thus, merely because the petitioner has chosen to style the application culminating in the impugned order as a fresh application does not me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice issued. 4. The petitioner has settled the demand under demand notice dated 30.03.2018 belatedly with interest, on 14.08.2020. A corrigendum dated 05.12.2018 had been issued to the demand notice making certain modifications to demand notice dated 30.03.2018. As far as demand notice is concerned, it attained finality with the settlement of the duty and interest demanded. 5. To be noted, that demand notice dated 30.03.2018 had also proposed, apart from re-classification and interest, confiscation under Section 111(m) and penalty under Section 112(a)/114(a) of the Customs Act, 1962 (in short 'Act'). 6. Seperately, the petitioner filed an application before the Customs, Central Excise and Service Tax Settlement Commission (in short 'Settlement Commission') on 04.07.2019 even prior to the settlement of the demand under demand notice dated 30.08.2018 read with corrigendum dated 05.12.2018. In that settlement application, a conscious choice was made to address only the transactions and demand covered under the show cause notice dated 25.06.2018. The transactions and demand relating to the 17 bills of entry that were the subject matter of demand notice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 13. The question is as to whether the procedure adopted by the Bench in dismissing the application without hearing the petitioner is appropriate and as to whether the bar under Section 127L would be, at all, applicable in the present case. 14. The petitioner relies on a judgment of the Hon'ble Supreme Court in the case of R.B.Shreeram Durga Prasad and Fatechand Nursing Das V. Settlement Commission (It and Wt) and ors. (176 ITR 169). This is cited to say that once an application is filed, the petitioner/assessee must be heard even at the threshold to determine the question of maintainability of the application. 15. In the present case, the application filed was under the provisions of Section 127B and hence the proper procedure as per Section 127C was for the Commission to have issued notice within 7 days from date of receipt of the application, hear the petitioner and thereafter either allow the application to be proceeded with or reject the same. This procedure has, admittedly, not been followed in this case, insofar as no notice has been issued prior to order dated 19.08.2020. This is the main submission of the petitioner. 16. Per contra, learned Senior Panel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 24.Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labeling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. In fact, Mr.Umesh also, after citing these decisions, does not pursue the challenge to maintainability on the ground that what is invoked here is Article 226 and not 227. He would prefer to proceed on the legal issue that has been agitated without delving on the technicalities, and rightly so. 20. I now proceed to decide the legal issue that arises as to whether the bar under Section 127L of the Act would apply in the present case. Section 127L reads as follows: '127-L. Bar on subsequent application for settlement in certain cases.- (1) [Where - (i) an order of settlement provides for the imposition of a penalty on the applicant under section 127-B for settlement, on the ground of concealment of particulars of his duty liability; or Explanation.-In this clause, the concealment of particulars of duty liability relates to any such concealment made from the officer of customs; (ii) after the passing of an order of settlement in relation to a case, such person is convicted of any offence under this Act in relation to that case; or (iii) the case of such person is sent back to the proper officer by the Settlement Commission under section 127-I, then such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 127L has been the subject matter of interpretation. The learned Judge states therein ' it is absurd to suggest that the expression 'concealment of particulars of his duty liability', pertains to the application made before the Settlement Commission. If that were to be so, every knave and his accomplice would conceal the duty payable in course of every transaction and approach the Settlement Commission only in the cases wehre he would be caught and would be slapped a show cause notice for additional duty. At paragraph 10, the Court states as follows: '10.The scheme of the provisions introduced for settlement of a demand indicates that a person may approach the Settlement Commission once for having concealed the particulars of the duty payable, but having exercised such option, the doors of the Settlement Commission are forever closed to the concerned assessee if the Settlement Commission imposes any fine on such assessee.' 27. In the present case, the petitioner is well aware of the duty that has been imposed in respect of 17 addtional transactions as amended by the subsequent corrigendum. The petitioner has also settled the duty demand acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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