Page 247 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] IN RE : INDO SHELL CAST PVT. LTD. 781

of Rs. 1,42,844/-. The applicant also sought settlement of the above amount paid
by them and pleaded for grant of immunity from imposition of penalties and
prosecution. The application was allowed to be proceeded with by the Bench on
4-10-2018. Meanwhile a letter dated 8-11-2018 was received from the Advocate
for the applicant on record that the dispute arising out of the impugned SCN had
been adjudicated vide Order-in-Original No. 65822/2018 dated 30-10-2018 and
requested that the application may be heard at the earliest.
8.4 The Joint Commissioner of Customs, Chennai-IV, vide letter S.
Misc. 18/2017-Drawback dated 2-1-2019 has reported, inter alia, that the above
said Order-in-Original No. 65822/2018 dated 30-10-2018 was passed only after
the applicant company had made a written request vide letter No.
ISC/CUS/DBK/MISC/2018-19 dated 10-10-2018 pertaining to the Show Cause
Notice F.No. S. Misc. 18/2017-DBK, dated 31-8-2018 stating that they have filed
an application before the Hon’ble Settlement Commission at Chennai and re-
quested him to release the pending drawback after passing the order without
personal hearing. The Deputy Commissioner of Customs (Drawback) in Para 15
of the Order-in-Original No. 65822/2018 dated 30-10-2018 in file S. Misc.
18/2017-DBK acknowledges the above facts. During the personal hearing held
on 12-2-2019, the Deputy Commissioner of Customs, Drawback, admitted that
above Order-in-Original was issued upon request made by the applicant and
that the Order-in-Original ought not to have been issued when settlement appli-
cation is pending decision.
8.5 As directed by the Bench, the Deputy Commissioner of Customs,
filed status report vide File F.No. S. Misc. 18/2017-DBK, dated 11-3-2019 stating
that while reviewing the Order-in-Original the Commissioner of Customs,
Chennai-IV has held that the Order-in-Original passed by the adjudicating au-
thority did not appear to be legal and proper and hence ordered that it had to be
appealed against to the Commissioner of Customs (Appeals-II) with the prayer
that the Order-in-Original in question may be set aside.
8.6 The Bench has considered the arguments of both the stake holders.
Before further proceeding in this matter it is to be seen whether O-in-O passed
has anything to do with the application filed by the applicant. It is seen that the
applicant firm after filing their application for settlement on 20-9-2018 requested
the Department in writing through a letter dated 10-10-2018 to issue the Order-
in-Original. The Order-in-Original No. 65822/2018 in file S. Misc. 18/2017-DBK
was issued on 30-10-2018. Thus it is seen that the Adjudication Order became
effective only on 30-10-2018 by which time the applicant had already filed his
application i.e., on 20-9-2018 with the Settlement Commission and as such the
applicant had complied with the requirement of the Provisions under Section
127A(b) of the Customs Act, 1962 since the Proceedings fall with the definition of
‘case’ and was pending before the Customs Officer on the date on which the ap-
plication was made in accordance with the provisions of law.
8.7 Sub-section (1) of Section 127F of the Customs Act, 1962 provides
that the Settlement Commission shall have all the powers which are vested in the
Customs Officer under the Act or the Rules. Sub-section (2) of Section 127F of the
Act provides that the Settlement Commission while passing an order under Sec-
tion 127C(5) will have exclusive jurisdiction to exercise the powers and perform
the function of any Customs Officer under this Act in relation to the case.
EXCISE LAW TIMES  1st June 2020  247