Page 169 - ELT_15th August 2020_Vol 373_Part 4

2020 ] MILLIONS FASHION v. CUSTOMS, C. EX. & S.T. SETT. COMM., CHENNAI 503

127B(1). The said proviso only makes a reference to the goods to which Sec-
tion 123 applies and not to Section 123 itself. We have already made it clear
that the goods to which Section 123 applies includes gold, as specifically
indicated in Section 123(2) of the said Act.
10. The Learned Counsel for the respondent also submits that the issue
is also covered against the petitioner by decision of the Division Bench of the
Karnataka High Court in C.S. India v. Additional Director General, DCEI, Bangalore,
2015 (325) E.L.T. 91 (Kar.), wherein, the similar view was taken by the Court.
11. The Learned Counsel for the petitioner submits that to satisfy the
requirement of the 3rd proviso under Section 127(B), the restrictions will apply
only to where the goods are not only notified under Section 123 of the Customs
Act, 1962, but also they should be smuggled goods. In this case, admittedly the
goods were not smuggled and therefore, in absence of smuggling, 3rd proviso to
Section 123 of the Customs Act, 1962 cannot be applied even though the import-
ed goods are notified.
12. I have considered the arguments advanced by the Learned Counsel
for the petitioner and the Learned Standing Counsel for the respondents.
13. The petitioner had originally admitted the liability of
Rs. 83,27,539/- and interest of Rs. 23,82,092/-. However, during the course of
hearing, the petitioner wanted to reduce the aforesaid amount to Rs. 77,81,844/-
and the proportionate interest to Rs. 15,50,791/- vide their letter/submission
dated 12-6-2015. The petitioner therefore wanted the 1st respondent to order re-
fund of Rs. 15,92,037/- along with interest of Rs. 8,31,301/-.
14. It is evident that the petitioner has not clearly explained its stand.
Instead the petitioner has changed its stand and thereby tried adjudication of
dispute by the 1st respondent Settlement Commission which is not warranted.
Since there is no clarity in the stand of the petitioner, the 1st respondent Settle-
ment Commission was constrained to dismiss the application stating that the
petitioner has raised the several contentious arguments which cannot be consid-
ered.
15. Since there is no scope for the second opportunity to settle the case
before the 1st respondent Settlement Commissioner by filing fresh application, I
am of the view that one more chance can be given to the petitioner to settle the
case by accepting the amounts that was originally offered as admitted the liabil-
ity by the petitioner.
16. I therefore set aside the impugned Final Notice dated 16-7-2015 and
remit the case back to the 1st respondent Settlement Commission to pass a fresh
order within a period of six months from the date of receipt of a copy of this or-
der. The maintainability issue is also left open to be decided by the 1st respond-
ent. The 2nd respondent may also file its objections before the 1st respondent
Settlement Commission within a period of the thirty days from the date of re-
ceipt of a copy of this order, if any.
17. The Writ Petition stands disposed with the above observation. No
cost. Consequently, connected Miscellaneous Petitions are closed.

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EXCISE LAW TIMES  15th August 2020  169