Page 168 - ELT_15th August 2020_Vol 373_Part 4

502 EXCISE LAW TIMES [ Vol. 373

sion can come to its own conclusion on the invocability of the Section to the
instant case.
(c) ………………..
(d) ……………….
8. The Learned Counsel for the petitioner submits that the 1st respond-
ent Customs, Central Excise & Service Tax Settlement Commission answered in
aforesaid paragraph 6.6. He further submits that the 1st respondent Customs,
Central Excise & Service Tax Settlement Commission erred in rejecting the appli-
cation on the ground that the issue was the complex of fact and law raised by the
rival parties. It should be adjudicated by the proper officer after appreciation of
facts and evidence.
9. Opposing the Writ Petition, the Learned Counsel for the respondents
submits that the 1st Settlement Commission has no jurisdiction and drew my
attention to the decision of the Delhi High Court in Additional Commissioner of
Customs v. Ram Niwas Verma, 2015 (323) E.L.T. 424 (Del.), wherein, the Court
dealt with the situation arising under Section 123 of the Customs Act, 1962 and
held as follows :-
7. On a plain reading of the third proviso to Section 127B(1) of the said
Act, it is evident that no application for settlement can be made if it relates
to goods to which Section 123 applies. Section 123 sub-section (2) specifical-
ly provides that the said Section applies to, inter alia, gold. It is, therefore,
clear that when the two provisions are read together, no application under
Section 127B(1) can be made in relation to gold. This case clearly pertains to
gold. The respondent made an application, nevertheless, to the Settlement
Commission which has entertained the same and has also rejected the plea
raised by the Revenue that it did not have jurisdiction to entertain such an
application. We agree with the submission made by the Learned Counsel
for the Revenue that the Settlement Commission did not have the jurisdic-
tion to entertain such an application as there was a complete bar provided
in the third proviso to Section 127B(1) read with Section 123 of the said Act.
8. The Learned Counsel for the respondent sought to draw some support
from a decision of this Court in the case of Commissioner of Customs v. Ashok
Kumar Jain : 2013 (292) E.L.T. 32 (Del.) as also a subsequent decision of an-
other Division Bench of this Court in Komal Jain v. Union of India : 2014 (304)
E.L.T. 675 (Del.). In Ashok Kumar Jain (supra), the issue of Section 123 has
not been considered at all. Insofar as the decision in Komal Jain (supra) is
concerned, the Division Bench itself, in paragraph 21, observed that the is-
sue with regard to the applicability of Section 123 of the Act by way of the
third proviso to Section 127B was left open and it was for the Settlement
Commission to examine the same, if such a point was raised, in accordance
with law. In the present case, we find that the point with regard to the third
proviso to Section 127B(1) read with Section 123 of the said Act had been
specifically raised by the Revenue and the same has been considered by the
Settlement Commission and has been rejected. We have already indicated
above that the rejection by the Settlement Commission is not in accordance
with law. A plain reading of the provisions clearly indicates that an applica-
tion under Section 127B cannot be made in respect of, inter alia, gold, which
is specifically an item to which Section 123 applies. We may point out that
there is no question of examining the provisions of Section 123(1) as also its
applicability because that is not the context of the third proviso to Section
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