JUDGMENT : R.D. Dhanuka, J. Rule. Mr.Jetly, learned senior counsel for the respondent nos.1 to 4 waives service. Mr.Jitendra Mishra, learned counsel for the respondent no.5 waives service. By consent of parties, petition is heard finally. 2. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks a writ of certiorari for quashing and setting aside the impugned notices dated 2nd February 2022 and 10th February 2022 issued by the respondent no.4 and the order dated 16th February 2022 issued by the respondent no.3. The petitioner also seeks a writ of mandamus to direct the Additional Bench, Settlement Commission, Mumbai to call for a report along with the relevant records from the respondent no.2-Commissioner of Customs in terms of Section 127C(3) and to consider and deal with the said application for interim settlement and to pass an appropriate order after complying with the principles of natural justice and the provisions of the Customs Act, 1962. Some of the relevant facts for the purpose of deciding this petition are as under :- 3. On or about 6th January 2022, the petitioner filed Bills of Entry Nos.6414624 and 6414261, both dated 26th November 2021 with the respondents. On 27th November 2021, the respondents issued Seizure Memorandum. The petitioners filed a writ petition bearing No.8751 of 2021 in this Court for various reliefs including for quashing and setting aside the said order of Seizure and for provisional release. In the said writ petition, the Commissioner of Customs (Import) filed an affidavit dated 6th January 2022 opposing the said writ petition. On 28th January 2022, the petitioners sought liberty to withdraw the said writ petition with liberty to avail all the remedies available in law. This Court accordingly disposed of the said writ petition as withdrawn with liberty as prayed by the petitioners. This Court disposed of the Interim Application No.4277 of 2021 as infructous in view of withdrawal of the writ petition. 4. On 28th January 2022, the petitioners filed an application to the Commissioner of Customs (Import). This Court accordingly disposed of the said writ petition as withdrawn with liberty as prayed by the petitioners. This Court disposed of the Interim Application No.4277 of 2021 as infructous in view of withdrawal of the writ petition. 4. On 28th January 2022, the petitioners filed an application to the Commissioner of Customs (Import). In the said application, the petitioners referred to the affidavit-in-reply filed by the respondents in the said writ petition no.8751 of 2021 and stated that since the goods are under seizure and yet to be cleared for home consumption, the issue of establishing the Identity of the goods for the purpose of exports in terms of Section 74(1) of the Customs Act, 1962 stands satisfied. The petitioners stated that they were accepting and depositing the net customs duty along with interest on those imported goods of which exports is sought computed at 2% of the total import duty, self-assessed on the basis of available contemporaneous valuation from finally assessed Bills of Entry as per the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and in terms of Section 74(1) of the Customs Act read with the judgment of this Court in case of Cipla Limited Vs. Union of India, 1995 (8)) ELT 17 (Bom.). 5. The petitioners made it clear that they were not accepting any differential duty as payable in respect of any past imports. The petitioners requested to take on record the contemporaneous value for each of the items mentioned in the two Seizure Memorandums both dated 27th November 2021 and to assess the value of the seized goods as per the said available contemporaneous value and to decide the issue of duty, interest, fine and penalty arising from the said deemed written Show Cause Notice received on or about 6th January 2022. 6. The petitioners also sought permission for filing and processing the Shipping Bills under Sections 50 and 51 for export of the seized goods against the said Export Orders under Section 74(1) of the Customs Act, 1962 and prayed for the provisional release of the seized goods pending final adjudication. The petitioners annexed copies of TR6 Challans dated 28th January 2022 in respect of the payment of Rs.12,07,804/- and Rs.10,91,827/- deposited by the petitioners. The petitioners annexed copies of TR6 Challans dated 28th January 2022 in respect of the payment of Rs.12,07,804/- and Rs.10,91,827/- deposited by the petitioners. The petitioners also produced TR6 Challan showing the payment of Rs.1100/- towards fees for filing an application for settlement under Section 127B of the Customs Act, 1962. On 31st January 2022, the petitioners forwarded a copy of the order passed by this Court dated 28th January 2022 in Writ Petition No.8751 of 2021 allowing the petitioners to withdraw the said writ petition with liberty to avail all the remedies available in law. 7. On 2nd February 2022, the Superintendent, Additional Bench, Settlement Commission informed the petitioners that on scrutiny of the purported application, it was found that the said application had two defects such as :- (a) No Show Cause Notice had been issued in the instant case which was a statutory requirement for filing an application before the Custom and Central Excise Settlement Commission as envisaged under proviso (a) to clause (1) of Section 127B of the Customs Act, 1962 and; (b) No separate application had been filed by the Co-Applicants M/s.Salecha Electronics INC and M/s.2000 Semi-Conductor. Thus the same would not meet the eligibility criteria under the provisions of Customs Act, 1962. 8. The petitioners were informed that it could not be treated as an application under Section 127B(1) of the Customs Act, 1962 as the same did not meet the eligibility criteria as prescribed therein. It was made clear that if no written reply would be received within seven days from the date of the said letter, the Commission was at liberty to decide the matter on the basis of the material contained in the application. The petitioners were informed that the said communication was issued with the approval of the Commissioner, Customs & Central Excise and Service Tax Settlement Commission, Additional Bench, Mumbai. 9. On 7th February 2022, the petitioners through their advocate’s letter addressed to the Chairman/Vice-Chairman and other Members of Settlement Commission responded to the said notice dated 2nd February 2022 and contended that the petitioners had dealt with the issue relating to satisfying maintainability criteria and satisfying statutory requirement of Show Cause Notice in paragraphs 15 to 20 of the said Common Settlement Application which were supported by precedents in that behalf. It was further contended that the affidavit dated 6th January 2022 by the respondent Commissioner was a deemed written Show Cause Notice for the purpose of settlement of the case. The petitioners requested the Settlement Commission to allow the said application to be proceeded with and call for a report with relevant records from the respondent Commissioner as provided under Section 127C(3) and to pass appropriate orders under Section 127C(4) to the learned Commissioner (Investigation) or may proceed for passing orders under Section 127C(5) in accordance with law. 10. On 10th February 2022, the Superintendent of Settlement Commission addressed a letter to the petitioners and after referring to the letter dated 2nd February 2022 from the Superintendent and the reply dated 7th February 2022 from the petitioners, once again pointed out the defects in the said application and made it clear that if there was no written reply received within five days from the date of the said letter, the Commission was at liberty to decide the matter on the basis of the material contained in the application. It was further mentioned that the said communication was issued with the approval of the Commissioner, Customs & Central Excise and Service Tax Settlement Commission, Additional Bench, Mumbai. 11. On 14th February 2022, the petitioners through their advocate’s letter to the Chairman/Vice-Chairman and other Members of Settlement Commission requested the Settlement Commission to allow the said application to be proceeded with and call for a report with relevant records from the respondent Commissioner as provided under Section 127C(3) and to pass appropriate orders under Section 127C(4) to the learned Commissioner (Investigation) or may proceed for passing orders under Section 127C(5) in accordance with law. 12. The Commissioner by communication dated 16th February 2022, once again referred to the previous correspondence exchanged between the parties, informed that in view of defects/deficiencies, it could not be treated as an application under Section 127B(1) of the Customs Act, 1962 and is accordingly returned in original as the same did not meet the eligibility criteria as prescribed therein and hence was not maintainable. The petitioners were informed that the said communication was issued with the approval of the Commissioner, Customs & Central Excise and Service Tax Settlement Commission, Additional Bench, Mumbai. On 18th February 2022, the petitioners filed this petition for various reliefs. 13. The petitioners were informed that the said communication was issued with the approval of the Commissioner, Customs & Central Excise and Service Tax Settlement Commission, Additional Bench, Mumbai. On 18th February 2022, the petitioners filed this petition for various reliefs. 13. Mr.Nankani, learned senior advocate for the petitioners invited our attention to various contentions raised by the respondents in the affidavit-in-reply dated 6th January 2022 filed in Writ Petition No.8751 of 2021 and would submit that the respondents had already taken a stand as to why the reliefs by the petitioners in Writ Petition No.8751 of 2021 shall not be granted. The respondents have also alleged that the petitioners are perpetrators of fraud attempting to smuggle iPhone 13 by re-sorting to mis-declaration at the time of imports, the seizure of goods under the provisions of Section 110 of the Customs Act, 1962 appears to be just as the same appeared liable to confiscation under the said Act. 14. It is submitted that in view of the respondents having made it’s position clear about the import, the petitioners sought liberty to withdraw the writ petition no.8751 of 2021 with liberty to avail all the remedies available in law. He submits that the application under Section 127B of the Customs Act is one of the remedies available in law to the petitioners for settlement of cases in accordance with the provisions of Section 14A read with Rules. He submits that the petitioners had paid the duties payable on the said import and had annexed the Challans acknowledging the payment of duty. 15. Learned senior counsel invited our attention to the Communication/Notice dated 2nd February 2022, 10th February 2022 and the order dated 16th February 2022 and would submit that neither the respondent no.3 nor the respondent no.4 could have passed any such order returning the application to the petitioners. He submits that the impugned communications/orders were not passed by the Settlement Commission but were passed by the Superintendent or Commissioner. 16. Learned senior counsel invited our attention to the correspondence addressed by the petitioners to the respondents and would submit that though several judgments and the provisions of law were referred in the correspondence and also in the application made before the Settlement Commission, the respondent nos.3 and 4 have not dealt with the said provisions and case laws relied upon by the petitioners in the impugned communication. 17. 17. Learned senior counsel for the petitioners placed reliance on the order dated 27th November 2009 passed by the Settlement Commission in case of M/s.Venture Impex and would submit that the said order would apply to the facts of this case. Though in that matter, there was no show cause notice issued by the respondents, the Settlement Commission entertained the application filed under Section 127B of the Customs Act, 1962. He placed reliance on the order dated 31st March 2006 passed by Division bench of this Court in Writ Petition No.1243 of 2006 in case of Omega Intl. Vs. Union of India & Anr. and would submit that this Court, in the said judgment, had directed that the affidavit of Assistant Commissioner of Customs (P) be treated as show cause notice under Section 124 of the Customs Act, 1962. He submits that the said order applies to the facts of this case. 18. Learned senior counsel also placed reliance on the order dated 26th July 2011 passed by the Settlement Commission in case of M/s.AVI Trexim Pvt. Ltd. & Ors. under Section 127B of the Customs Act, 1962 before the Settlement Commission and would submit that the Settlement Commission in that matter had also entertained the application even without any show cause notice by the respondents. 19. It is submitted by the learned senior counsel that in the affidavit-in-reply filed by the respondents in this writ petition, there is no denial that the petitioners have complied with the requirements under Section 127B of the Customs Act, 1962 in the said application before the Settlement Commission. The respondents have also not disputed the computation of duties made by the petitioners in this writ petition. 20. Learned senior counsel placed reliance on Sections 28 and 124 of the Customs Act, 1962. He also placed reliance upon Section 17 of the Customs Act, 1962 and would submit that under the said provisions, the petitioners had already self-assessed the duty leviable on the imported goods or export goods and had paid the duties payable accordingly. The Investing Officer has already recorded the statement of the buyers of the petitioners. He submits that assessment of duty can be in any form. The Settlement Commission has plenary powers and can assess the correctness of the duties paid by the petitioners by self-assessment under Section 17 of the Customs Act. 21. The Investing Officer has already recorded the statement of the buyers of the petitioners. He submits that assessment of duty can be in any form. The Settlement Commission has plenary powers and can assess the correctness of the duties paid by the petitioners by self-assessment under Section 17 of the Customs Act. 21. Learned senior counsel placed reliance on Section 127 C(1) and submits that the Settlement Commission has to issue a notice to the applicant within seven days from the date of the receipt of the application to explain in writing as to why the application made by him should be allowed to be proceeded with and after taking into consideration the explanation provided by the applicant, the Settlement Commission has to pass an order within a period of fourteen days from the date of the notice, by an order, allow the application to be proceeded with or reject the application, as the case may be, and the proceedings before the Settlement Commission shall abate on the date of rejection. He submits that the Settlement Commission has to thereafter follow the procedure prescribed under the said provision. 22. It is submitted that the issuance of show cause notice is not a sine qua non for the purpose of quantification of the duty. Under Section 127C(5) of the Customs Act, 1965, powers of the Settlement Commission are very wide. Under Section 127C(1), the Commissioner has no power to return any application to the petitioners. The application either can be rejected or admitted. Under Section 127F, the Settlement Commission has all the powers which are vested in an officer of the Customs under the said Act or Rules made thereunder in addition to the powers conferred under the said Chapter V of Central Excise Act, 1944. He submits that once the application for settlement is admitted or deemed to have been admitted, all powers are vested in the Settlement Commission and not in the Superintendent or Commissioner. 23. Learned senior counsel strongly placed reliance on Section 127H and would submit that the Settlement Commission has power to grant immunity from prosecution and penalty. The respondents cannot deprive the petitioners from immunity from prosecution and penalty by returning the application filed for Settlement. 23. Learned senior counsel strongly placed reliance on Section 127H and would submit that the Settlement Commission has power to grant immunity from prosecution and penalty. The respondents cannot deprive the petitioners from immunity from prosecution and penalty by returning the application filed for Settlement. He submits that under Section 127I, the Settlement Commission also has power to send a case back to the proper officer who shall thereupon dispose of the case in accordance with the provisions of the said Act as if no application under Section 127B had been made. He submits that the provisions relating to ouster of jurisdiction has to be construed strictly. 24. Learned senior counsel for the petitioners invited our attention to the Customs and Central Excise Settlement Commission Procedure, 2007 and more particularly the definition of “Commission” under Rule 2(d), Rule 8 which provides for ‘Date and place of hearing of application to be notified’ and Rule 10 which provides for ‘Power of a Bench of Settlement Commission.’ He also relied upon a Circular : Standing Order No.2/2001 dated 7th March 2001 and more particularly Rule 2 and would submit that even if the application for settlement is incomplete, the same cannot be dismissed by the Superintendent or Commissioner. He submits that the three communications/orders are passed in violation of statutory provisions. No hearing has been granted before passing these orders. The return of application by the Commissioner is without any power made thereunder. 25. Learned senior counsel for the petitioners submits that the judgment of this Court in case of Union of India Vs. K. Amishkumar Trading Pvt. Ltd., 2011 (273) E.L.T. 49 (Bom.) relied upon by the respondents in affidavit-in-reply is distinguishable in the facts of this case. He submits that in this case, the petitioners have not waived the show cause notice. The respondents had filed a detailed affidavit in the earlier writ petition filed by the petitioners strongly objecting to the reliefs sought by the petitioners challenging the Seizure Memorandum and also the relief for provisional release for the reasons recorded in the said affidavit. He submits that the bar under Section 127B would apply if the final order is passed under Section 127C(5) subject to the condition therein i.e. further enquiry or investigation. The Union of India, in the said petition, had challenged the order passed by the Settlement Commission which was a final order. 26. He submits that the bar under Section 127B would apply if the final order is passed under Section 127C(5) subject to the condition therein i.e. further enquiry or investigation. The Union of India, in the said petition, had challenged the order passed by the Settlement Commission which was a final order. 26. Mr.Jetly, learned senior counsel for the respondent nos.1 to 4, on the other hand, submits that writ petition filed by the petitioners herein is premature. No show cause notice is issued till date by the respondents. The order passed by the respondents is by way of an administrative order. There is no quantification of payment of duty or penalty or interest or any further action proposed by the respondents till date against the petitioners nor any such amount is demanded till date. He submits that as on today, there is no adverse order against the petitioners and thus no cause of action for filing application for settlement. He submits that under Section 127B (1) proviso (a), issuance of show cause notice was mandatory for filing an application under the said provision which condition is not complied with by the petitioners. In absence of any such show cause notice, the petitioners at the first instance could not have filed any such application under Section 127B(1) of the Customs Act, 1962. 27. It is submitted that if the respondents issue any show cause notice in future, the petitioners can always file an application for settlement under the said provision subject to compliance of other conditions mentioned therein. Investigation against the petitioners are incomplete. The respondents had only placed in the affidavit-in-reply in the earlier petition what came to light during the course of investigation against the petitioners while opposing the relief sought in the said writ petition. 28. It is submitted that as on today, neither any amount of duty nor any penalty or interest is crystallized. He submits that if any show cause notice cum notice of demand is issued by the respondents against the petitioners, the respondents would not be allowed to travel beyond the said show cause notice-cum-notice of demand. Learned senior counsel for the respondents strongly placed reliance on the judgment of this Court in case of Union of India Vs. K. Amishkumar Trading Pvt. Ltd. (supra) and would submit that the said judgment would squarely apply to the facts of this case. 29. Learned senior counsel for the respondents strongly placed reliance on the judgment of this Court in case of Union of India Vs. K. Amishkumar Trading Pvt. Ltd. (supra) and would submit that the said judgment would squarely apply to the facts of this case. 29. Mr.Nankani, learned senior counsel for the petitioners in rejoinder submits that the application for settlement could not have been returned by the Commissioner without any adjudication thereupon by the Settlement Commission. The said application could be either rejected or admitted under the said provision. It is submitted that if the said application would have been admitted, the petitioners would have been granted immunity under the said Chapter. The petitioners have already admitted the liability and if the impugned orders are not set aside, the respondents would rely upon the admissions already made by the petitioners for payment of duty that would be relied upon by the respondents against the petitioners at the time of adjudication of show cause notice, if any, or during the course of investigation which would cause tremendous prejudice to the petitioners. 30. Learned senior counsel placed reliance on the judgment of this Court in case of Mandhana Dyeing Vs. Union of India, 2010 (251) E.L.T. 481 (Bom.) and would submit that legislative intention for settlement of cases is to open the doors for settlement. The Court has to adopt the construction, which advances, fulfills and furthers the object of the Act rather than the one, which would defeat the same and prevent settlement. 31. Relevant provisions of Central Excise Act, 1944, Customs Act, 1962, the Customs & Central Excise Settlement Commission Procedure, 2007 and Customs (Settlement of Cases) Rules 2007 relied upon by both the parties are extracted as under :- Central Excise Act, 1944 – Chapter V – ‘Settlement of Cases’ SECTION 31. Definitions ……… SECTION 32. Customs and Central Excise Settlement Commission - (1) The Central Government shall, by notification in the Official Gazette, constitute a Commission to be called the [Customs, Central Excise and Service Tax Settlement Commission] for the settlement of cases under this Chapter and Chapter XIVA of the Customs Act, 1962 (52 of 1962). (2) The Settlement Commission shall consist of a Chairman and as many Vice-Chairmen and other Members as the Central Government thinks fit and shall function within the Department of the Central Government dealing with Customs and Central Excise matters. (2) The Settlement Commission shall consist of a Chairman and as many Vice-Chairmen and other Members as the Central Government thinks fit and shall function within the Department of the Central Government dealing with Customs and Central Excise matters. (3) The Chairman, Vice-Chairman and other Members of the Settlement Commission shall be appointed by the Central Government from amongst persons of integrity and outstanding ability, having special knowledge of, and experience in, administration of customs and central excise laws : SECTION 32A. Jurisdiction and powers of Settlement Commission- (1) Subject to the other provisions of this Chapter, the jurisdiction, powers and authority of the Settlement Commission may be exercised by Benches thereof. (2) Subject to the other provisions of this section, a Bench shall be presided over by the Chairman or a Vice-Chairman and shall consist of two other Members. (3) The Bench for which the Chairman is the presiding officer shall be the principal Bench and other Benches shall be known as additional Benches. (4) Notwithstanding anything contained in sub-section (1) and subsection (2), the Chairman may authorise the Vice-Chairman or other Member appointed to one Bench to discharge also the functions of the Vice-Chairman or, as the case may be, other Member of another Bench. (5) The principal Bench shall sit at Delhi and the Central Government shall, by notification in the Official Gazette, establish additional Benches at such places as it considers necessary. (5) The principal Bench shall sit at Delhi and the Central Government shall, by notification in the Official Gazette, establish additional Benches at such places as it considers necessary. (6) Notwithstanding anything contained in the foregoing provisions of this section, and subject to any rules that may be made in this behalf, when one of the persons constituting a Bench (whether such person be the presiding officer or other Member of the Bench) is unable to discharge his functions owing to absence, illness or any other cause or in the event of the occurrence of any vacancy either in the office of the presiding officer or in the office of one or the other Members of the Bench, the remaining Members may function as the Bench and if the presiding officer of the Bench is not one of the remaining Members, the senior among the remaining Members shall act as the presiding officer of the Bench : Provided that if at any stage of the hearing of any such case or matter, it appears to the presiding officer that the case or matter is of such a nature that it ought to be heard of by a Bench consisting of three Members, the case or matter may be referred by the presiding officer of such Bench to the Chairman for transfer to such Bench as the Chairman may deem fit. Provided further that at any stage of the hearing of any such case or matter, referred to in the first proviso, the Chairman may, if he thinks that the case or matter is of such a nature that it ought to be heard by a Bench consisting of three Members, constitute such Bench and if Vice-Chairman is not one of the Members, the senior among the Members shall act as the presiding officer of such Bench. (7) Notwithstanding anything contained in the foregoing provisions of this section, the Chairman may, for the disposal of any particular case, constitute a special Bench consisting of more than three Members. (8) Subject to the other provisions of this Chapter, the special Bench shall sit at a place to be fixed by the Chairman. SECTION 32B. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances. C.4. – Rule 2(d) of the Customs and Central Excise Settlement Commission Procedure, 2007 notified vide Notification No. 1/2007/SC(PB) dated 31.05.2007 (as amended). “RULE 2. SECTION 32B. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances. C.4. – Rule 2(d) of the Customs and Central Excise Settlement Commission Procedure, 2007 notified vide Notification No. 1/2007/SC(PB) dated 31.05.2007 (as amended). “RULE 2. Definitions. - Unless the context otherwise requires; (d) “Commission” means the Customs and Central Excise Settlement Commissioner instituted under Section 32 of the Central Excise Act, and include any Bench exercising or discharging the powers or functions of the Commissioner;” CUSTOMS ACT, 1962 - Section 127A. Definitions – In this Chapter, unless the context otherwise requires, - (a)"Bench" means a Bench of the Settlement Commission; (b)"case" means any proceeding under this Act or any other Act for the levy, assessment and collection of customs duty, pending before an adjudicating authority on the date on which an application under subsection (1) of section 127B is made: Provided that when any proceeding is referred back by any Court, Appellate Tribunal or any other authority, to the adjudicating authority for a fresh adjudication or decision, as the case may be, then such proceeding shall not be deemed to be a proceeding pending within the meaning of this clause; (c)"Chairman" means the Chairman of the Settlement Commission; (d)"Commissioner (Investigation)" means an officer of the customs or a Central Excise Officer appointed as such Commissioner to conduct inquiry or investigation for the purposes of this Chapter; (e)"Member" means a Member of the Settlement Commission and includes the Chairman and the Vice Chairman; (f)"Settlement Commission" means the Customs, Central Excise and Service Tax Settlement Commission constituted under section 32 of the Central Excise Act, 1944 (1 of 1944); and (g)"Vice-Chairman" means a Vice-Chairman of the Settlement Commission. Section 127C - Procedure on receipt of an application under Section 127B. Section 127C - Procedure on receipt of an application under Section 127B. (1) On receipt of an application under section 127B, the Settlement Commission shall, within seven days from the date of receipt of the application, issue a notice to the applicant to explain in writing as to why the application made by him should be allowed to be proceeded with and after taking into consideration the explanation provided by the applicant, the Settlement Commission, shall, within a period of fourteen days from the date of the notice, by an order, allow the application to be proceeded with or reject the application, as the case may be, and the proceedings before the Settlement Commission shall abate on the date of rejection : Provided that where no notice has been issued or no order has been passed within the aforesaid period by the Settlement Commission, the application shall be deemed to have been allowed to be proceeded with. (2) A copy of every order under sub-section (1) shall be sent to the applicant and to the [Principal Commissioner of Customs or Commissioner of Customs] having jurisdiction. (3) Where an application is allowed or deemed to have been allowed to be proceeded with under sub-section (1), the Settlement Commission shall, within seven days from the date of order under sub-section (1), call for a report along with the relevant records from the Principal Commissioner of Customs or Commissioner of Customs having jurisdiction and the Commissioner shall furnish the report within a period of thirty days of the receipt of communication from the Settlement Commission : Provided that where the Principal Commissioner or Commissioner of Customs does not furnish the report within the aforesaid period of thirty days, the Settlement Commission shall proceed further in the matter without the report of the Principal Commissioner or Commissioner of Customs. (4) Where a report of the Commissioner called for under sub-section(3) has been furnished within the period specified in that sub-section, the Settlement Commission may, after examination of such report, if it is of the opinion that any further enquiry or investigation in the matter is necessary, direct, for reasons to be recorded in writing, the Commissioner (Investigation) within fifteen days of the receipt of the report, to make or cause to be made such further enquiry or investigation and furnish a report within a period of ninety days of the receipt of the communication from the Settlement Commission, on the matters covered by the application and any other matter relating to the case : Provided that where the Commissioner (Investigation) does not furnish the report within the aforesaid period, the Settlement Commission shall proceed to pass an order under sub-section (5) without such report. (5) After examination of the records and the report of the Principal Commissioner of Customs or Commissioner of Customs received under sub-section (3), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (4), and after giving an opportunity to the applicant and to the Principal Commissioner of Customs or Commissioner of Customs having jurisdiction to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Principal Commissioner of Customs or Commissioner of Customs and Commissioner (Investigation) under sub-section (3) or subsection (4). Section 127F. Power and procedure of Settlement Commission - (1) In addition to the powers conferred on the Settlement Commission under Chapter V of the Central Excise Act, 1944 (1 of 1944), it shall have all the powers which are vested in an officer of the customs under this Act or the rules made thereunder. Section 127F. Power and procedure of Settlement Commission - (1) In addition to the powers conferred on the Settlement Commission under Chapter V of the Central Excise Act, 1944 (1 of 1944), it shall have all the powers which are vested in an officer of the customs under this Act or the rules made thereunder. (2) Where an application made under section 127B has been allowed to be proceeded with under section 127C, the Settlement Commission shall, until an order is passed under sub-section (5) of section 127C, have, subject to the provisions of sub-section (4) of that section, exclusive jurisdiction to exercise the powers and perform the functions of any officer of customs or Central Excise Officer as the case may be, under this Act or in the Central Excise Act, 1944 (1 of 1944), as the case may be, in relation to the case. (3) In the absence of any express direction by the Settlement Commission to the contrary, nothing in this Chapter shall affect the operation of the provisions of this Act in so far as they relate to any matter other than those before the Settlement Commission. (4) The Settlement Commission shall, subject to the provisions of Chapter V of the Central Excise Act, 1944 (1 of 1944) and this Chapter, have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers, or of the discharge of its functions, including the places at which the Benches shall hold their sittings. Section 127M. Proceedings before Settlement Commission to be judicial proceedings – Any proceedings under this Chapter before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860). Section 127N. Applications of certain provisions of Central Excise Act- The provisions of Chapter V of the Central Excise Act, 1944 (1 of 1944) in so far as it is not inconsistent with the provisions of this Chapter shall apply in relation to proceedings before the Settlement Commission under this Chapter. The Customs & Central Excise Settlement Commission Procedure, 2007- RULE 4. Signing of notices, etc. The Customs & Central Excise Settlement Commission Procedure, 2007- RULE 4. Signing of notices, etc. - (i) any requisition, direction, letter, authorization, order or written notice to be issued by the Commission shall be signed by the Chairman or a Vice-Chairman or any other Member of the Commission or by the Secretary; (ii) nothing in sub-rule (1) shall apply to any requisition or direction which the Commission may, in the course of the hearing, issue to an applicant or a Commissioner or an authorized representative personally. Customs (Settlement of Cases) Rules 2007 - Section 3. Form and manner of application – (1) An application under sub-section (1) of Section 127B shall be made in Form SC(C)-1. REASONS AND CONCLUSION :- 32. The question that arises for consideration of this Court is whether the application for settlement filed by the petitioners before the Customs and Central Excise Settlement Commission under Section 127B of the Customs Act, 1962 is maintainable even if no show cause notice was issued by the respondents against the petitioners or is premature before issuance of show cause notice or not. The question also arises as to whether affidavit-in-reply filed by the respondents in the earlier writ petition filed by the petitioners opposing the reliefs and pointing out the stage of investigation against the petitioners pursuant to the summons issued by the respondents can be construed as show cause notice contemplated in proviso (a) to Section 127B(1). 33. It is not in dispute that the goods imported and subject matter of Bills of Entry, both dated 26th November 2021 have been seized by DRI. The petitioners had impugned the said Seizure Memorandum and had applied for order of provisional release of those goods by filing Writ Petition No.8751 of 2021. In the said writ petition, the Commissioner of Customs (Import) filed an affidavit dated 6th January 2022 opposing the said writ petition on various grounds. On 28th January 2022, this Court granted liberty to the petitioners on oral application to withdraw the said writ petition with liberty to avail all the remedies available in law and disposed of the said writ petition as withdrawn with liberty as prayed. The petitioners thereafter deposited Rs.12,07,804/- and Rs.10,91,827/- towards duty and payment of interest and also the application fees for filing application under Section 127B of the Customs Act. The petitioners thereafter deposited Rs.12,07,804/- and Rs.10,91,827/- towards duty and payment of interest and also the application fees for filing application under Section 127B of the Customs Act. The petitioners filed an application under Section 127B of the Customs Act with the said Settlement Commission at Mumbai on 31st January 2022. 34. A perusal of the said application for settlement of the case under Section 127B of the Customs Act, 1962 and under Rule 3 of the Customs (Settlement of Cases) Rules, 2007 indicates that in the said Form No. SC(C)-1 at Serial No.6 where the petitioners were required to submit the details of show cause notice issued to the petitioners, the petitioners referred to affidavit-in-reply-cum-notice from the respondent Commissioner which refers to investigations and seizure by DRI and their submissions placed on record and informing the case of alleged mis-declaration of material particulars intended for clearing mis-declared goods for home consumption in contravention of Rule 11 of Foreign Trade (Regulation) Rules, 1993, Section 46 of the Customs Act, 1962. 35. In paragraph 6 (c) of the said Form, the petitioners were required to disclose the duty demanded in the show cause notice. The petitioners stated that it was not quantified. In paragraph 10 of the said Form, the petitioners on their own mentioned the amount of duty which is payable according to the petitioners, without there being any quantification by the respondents. In paragraph 17 of the Annexure-A, the petitioners alleged that they have placed on record the deemed written show cause notice and also the remand application filed by DRI seeking remand of co-accused before the Esplanade Court. The petitioners also placed on record the writ petition and the application therein preferred by them and two affidavits filed by DRI. 36. Under Section 28 of the Custom Act, the proper officer is empowered to issue notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. Proviso to Section 28(1)(a) provides that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with the duty or interest in such manner as may be prescribed. Proviso to Section 28(1)(a) provides that before issuing notice, the proper officer shall hold pre-notice consultation with the person chargeable with the duty or interest in such manner as may be prescribed. Under Section 28(1)(b), the person chargeable with the duty or the interest, may pay, before service of notice under clause (a) on the basis of (i) his own ascertainment of such duty; or (ii) the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under Section 28AA or the amount of interest which has not been so paid or part-paid. The proper officer shall not serve such show cause notice, where the amount involved is less than rupees one hundred. Under Section 28(9), the proper officer has to determine the amount of duty or interest under sub-section (8)-(a) within six months from the date of notice, in respect of case falling under clause (a) of subsection (1); (b) within one year from the date of notice, in respect of cases falling under sub-section (4), subject to condition set out therein. 37. Under Section 127B, any importer, exporter or any other person 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 in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods. 38. The term “case” has been defined under Section 127A(b) of the Customs Act which means any proceeding under this Act or any other Act for the levy, assessment and collection of customs duty, pending before an adjudicating authority on the date on which an application under sub-section (1) of section 127B is made. In this case, there is no show cause notice issued by the respondents to the petitioners and thus no proceedings for levy, assessment and collection of customs duty is pending before an adjudicating authority on the date when the petitioners applied for settlement under Section 127B of the Customs Act. In this case, there is no show cause notice issued by the respondents to the petitioners and thus no proceedings for levy, assessment and collection of customs duty is pending before an adjudicating authority on the date when the petitioners applied for settlement under Section 127B of the Customs Act. In our view, such application for settlement of cases under Section 127B could be filed only in respect of the “case” within the meaning of Section 127A(b) i.e. in pending proceedings before an adjudicating authority for levy, assessment and collection of customs duty on which the said application under Section 127B(1) was made by the petitioners. The said application filed by the petitioners under Section 127B was thus not maintainable at that stage on this ground also. 39. Proviso (a) to Section 127B(1) of the Customs Act clearly provides that no application under Section 127B(1) shall be made unless show cause notice has been issued to him by the proper officer. Rule 3 of the Customs (Settlement of Cases) Rules, 2007 clearly provides for the manner of filing an application. It is provided that the application under sub-section (1) of Section 127B of the said Act shall be made in Form No.SC(C)-1. 40. A conjoint reading of Section 127B(1) read with proviso and Rule 3 of the Customs (Settlement of Cases) Rules, 2007 clearly indicates that the application for settlement process has to be filed in such Form and in such manner as may be prescribed by Rules. Form No.SC(C)-1 prescribed under Rule 3 of the Customs(Settlement of Cases) Rules, 2007 and more particularly Serial No.6 clearly contemplates that the applicant has to furnish details of show cause notice issued to the applicant, the duty demanded in the show cause notice etc. The petitioners however has considered the affidavit-in-reply filed by the respondents before this Court in Writ Petition No.8751 of 2021 as a deemed written show cause notice not prescribed under any provisions of the Customs Act, 1962. 41. The petitioners however has considered the affidavit-in-reply filed by the respondents before this Court in Writ Petition No.8751 of 2021 as a deemed written show cause notice not prescribed under any provisions of the Customs Act, 1962. 41. Under Section 127H of the Customs Act, if the Settlement Commission is satisfied that any person who made the application for settlement under section 127B has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under the said Act and also either wholly or in part from the imposition of any penalty and fine under the said Act, with respect to the case covered by the settlement. 42. Under Section 127C of the said Customs Act, the Settlement Commission has to issue a notice to the applicant within seven days from the date of receipt of the application to explain in writing as to why the application made by him should be allowed to be proceeded with and after taking into consideration the explanation provided by the applicant, the Settlement Commission, shall, within a period of fourteen days from the date of the notice, by an order, allow the application to be proceeded with or reject the application, as the case may be, and the proceedings before the Settlement Commission shall abate on the date of rejection. 43. This Court in case of Union of India Vs. K. Amishkumar Trading Pvt. Ltd. (supra) after considering the identical facts and after interpreting proviso (a) to Section 127B(1), has held that “no such application shall be made unless (a) the applicant has filed a Bill of Entry or a shipping bill, in respect of the import or export of such goods, as the case may be, and in relation to such Bill of Entry or shipping bill, a show cause notice has been issued to him by the proper officer”. These conditions have to be cumulatively fulfilled and are mandatory. If an application has to be filed to the Settlement Commission, there is no question of the applicant waiving the notice to show cause. Accepting such a contention would defeat the Parliamentary intent. These conditions have to be cumulatively fulfilled and are mandatory. If an application has to be filed to the Settlement Commission, there is no question of the applicant waiving the notice to show cause. Accepting such a contention would defeat the Parliamentary intent. The issuance of a notice to show cause is an important stage and when it is made a jurisdictional requirement – in the absence of which even an application cannot be made – an applicant cannot set up a waiver of such a condition. Parliament has legislated by requiring that no application under Section 127B(1) can be made unless a notice to show cause has been issued. 44. It is held that in the absence of a notice to show cause a mandatory jurisdictional requirement is not fulfilled. In absence of a notice to show cause, the Settlement Commission cannot assume jurisdiction. An assessee cannot by his own act of waiving the issuance of a notice to show cause confer jurisdiction upon the Settlement Commission. Admittedly in this case, no show cause notice has been issued by the respondents under any of the provisions of the Customs Act, 1962 for adjudication. There is no provision under the Customs Act providing for a deemed written show cause notice which could be considered as show cause notice which is condition precedent for filing an application for settlement under Section 127B(1) of the Customs Act, 1962. 45. In our view, averments made in the affidavit-in-reply filed by the respondents for opposing the earlier writ petition filed by the petitioners challenging the Seizure Memorandum or applying for provisional release of seized goods followed by two Bills of Entry cannot amount to a show cause notice contemplated under Section 127B(1) of the Customs Act for invoking the said provision. Be that as it may, even in the said affidavit-in-reply filed by the respondents in Writ Petition No.8751 of 2021, no amount of duty, interest or any other recovery was mentioned by the respondents to be recovered from the petitioners. The Form SC(C)-1 filed by the petitioners itself was not filed in accordance with the said Form prescribed under Rule 3 of Customs (Settlement of Cases) Rules 2007 which was mandatory. 46. Madras High Court in case of V. C. Mohan Vs. The Form SC(C)-1 filed by the petitioners itself was not filed in accordance with the said Form prescribed under Rule 3 of Customs (Settlement of Cases) Rules 2007 which was mandatory. 46. Madras High Court in case of V. C. Mohan Vs. Commissioner of Customs (AIR), Chennai-I, 2008 (222) E.L.T. 344 (Mad.) has compared the provision of Section 245-D of Income Tax Act, 1961 with Section 127B(1) of the Customs Act, 1962 and has held that in the Income-tax law, application for settlement must be made before the investigation has started or before the statutory authority has collected any material or any notice is issued to the applicant. There must be a voluntary aspect in the disclosure of fact in concealment. On the contrary, in the provisions of the Customs Act, it is mandatory that the applicant could file an application only after show cause notice is issued which show cause notice would pertain even for confiscation of goods on the ground of fraud or smuggling or deliberate mis-declaration. Such show cause notice is a condition precedent before making an application. Having regard to such statutory ingredient, there could never be any case of filing of an application under Section 127B before imitation of any action by the Department or of voluntary aspect under the Customs Act. We are in respectful agreement with the views expressed by the Madras High Court. 47. Madras High Court in case of Optigrab International Vs. Government of India, 2010 (253) E.L.T. 722 (Mad.) has held that Chapter XIVA of the Customs Act, being an exception to the normal procedure contemplated under the Act and occurring in a fiscal statute, has to be necessarily construed strictly. The scope of the proceedings cannot be unduly enlarged. It is held that allowing of settlement applications means there may not be any penal proceedings and confiscation. In such circumstances, when the applicant seeks to avail benefit of settlement, the provisions of Section 127A and 127B are to be strictly construed. In our view, since the petitioners had not complied with the mandatory requirement, the application for settlement under Section 127B of the Customs Act filed prior to issuance of show cause notice by the respondents, the said application filed by the petitioners was not an application which could be adjudicated upon by the Settlement Commission under Section 127B of the Customs Act, 1962. 48. 48. In our view, the said application filed by the petitioners without complying with the mandatory requirements under Section 127B(1) read with Rules being a defective application, was not maintainable at that stage and was premature. The Settlement Commission thus even otherwise could not have entertained such application based on self made laws of the petitioners by treating the affidavit-in-reply filed by the respondents in earlier writ petition as deemed written show cause notice. 49. Perusal of the letter dated 2nd February 2022 signed by the Superintendent from the Office of the said Settlement Commission which was addressed to the petitioners would indicate that the said letter was issued with approval of the Commissioner, Customs & Central Excise and Service Tax Settlement Commission, Additional Bench, Mumbai. By the said letter, the respondents have clearly pointed out that on scrutiny of the purported application, it was found that the said application had two defects and did not meet the eligibility criteria under the relevant provisions of Customs Act, 1962. The petitioners were put to the notice that in view of the said defects/deficiencies, the said application could not be treated as an application under Section 127B(1) of the Customs Act, 1962 as the same did not meet the eligibility criteria as prescribed therein. 50. The petitioners vide letter dated 7th February 2022 in response to the said notice dated 2nd February 2022 submitted that the petitioners had already dealt with the issue relating to satisfying maintainability criteria and satisfying statutory requirement of Show Cause Notice in paragraphs 15 to 20 of the said Common Settlement Application which are supported by precedents in that behalf. It was contended that affidavit dated 6th January 2022 filed by the respondent Commissioner is deemed show cause notice for the purpose of settlement of cases. The petitioners had treated the affidavit of the Commissioner as deemed show cause notice. Instead of defects pointed out by the Settlement Commission in the said application filed by the petitioners, the petitioners reiterated its stand that the affidavit in reply to the writ petition was to be construed as deemed show cause notice. 51. The petitioners had treated the affidavit of the Commissioner as deemed show cause notice. Instead of defects pointed out by the Settlement Commission in the said application filed by the petitioners, the petitioners reiterated its stand that the affidavit in reply to the writ petition was to be construed as deemed show cause notice. 51. The Settlement Commission once again by letter dated 10th February 2022 signed by the Superintendent addressed to the petitioners pointed out the defects that neither there was any show cause notice in the instant case nor the same was pending before any adjudicating authority and thus it did not satisfy the definition of “case” in terms of section 127A(b) of the Customs Act, 1962. The respondents once again clarified that in view of those defects/deficiencies, it did not satisfy the condition for an application under section 127B(1) of the Customs Act, 1962. The respondents had made it clear that that if there was no written reply received within five days from the date of the said letter, the Commission was at liberty to decide the matter on the basis of the material contained in the application. It was further made clear that the said letter was issued with the approval of the Commissioner, Customs & Central Excise and Service Tax Settlement Commission, Additional Bench, Mumbai. 52. The petitioners however did not cure the said defects as pointed out by the respondents again in the said letter dated 10th February 2022 but raised similar issues which were raised earlier in respond to the communication dated 2nd February 2022 vide their advocate’s letter dated 14th February 2022. In these circumstances, the Settlement Commission issued a letter/order dated 6th February 2022 signed by the Commissioner and after referring the earlier correspondence exchanged between the parties informed the petitioners that application filed by the petitioners for settlement was defective or premature as no show cause notice was issued in the instant case as envisaged under proviso (a) to Section 127B(1) of the Customs Act or no show cause notice was pending before the adjudicating authority. 53. In our view, the said application did not satisfy the definition of “case” in terms of section 127A(b) of the Customs Act, 1962. The said application thus could not be treated as an application under Section 127B(1) of the Customs Act, 1962 and was rightly returned in original to the petitioners. 53. In our view, the said application did not satisfy the definition of “case” in terms of section 127A(b) of the Customs Act, 1962. The said application thus could not be treated as an application under Section 127B(1) of the Customs Act, 1962 and was rightly returned in original to the petitioners. The petitioners were informed that the letter/order was issued with the approval of the Commissioner, Customs & Central Excise and Service Tax Settlement Commission, Additional Bench, Mumbai. 54. A perusal of the reply dated 7th February 2022 signed by the petitioners in response to the notice dated 2nd February 2022 and reply dated 14th February 2022 in response to the notice dated 10th February 2022 making various submissions and raising contentions were also addressed to the Settlement Commission and not to the Superintendent or Commissioner for consideration. This aspect is also clarified by the respondents in their affidavit-in-reply dated 23rd February 2022 that the petitioners filed an application before the registry of Customs & Central Excise Settlement Commission on 31st January 2022. After processing, the application was placed before the Chairman, Customs & Central Excise Settlement Commission on 31st January 2022. 55. The Chairman, Customs & Central Excise Settlement Commission had ordered on file on 1st February 2020 as “the defects be communicated by the Registry to applicant.” Accordingly, the defects were communicated to the applicant (the petitioner) on 2nd February 2022. The letter of the petitioners’ advocate was again placed before the Chairman, Customs & Central Excise Settlement Commission on 9th February 2022 who after perusing the reply had ordered on file on 9th February 2022 as “the defects be again be communicated to the applicant.” There was no show cause notice pending adjudication, it also does not fit in the definition of “case” under Section 127A(b) of the Customs Act, 1962. Defects were communicated to the petitioners vide letter dated 10th February 2022. 56. In paragraph 5.4 of the said affidavit, it is averred that the letter addressed by the petitioners’ advocate dated 14th February 2022 was placed before the Chairman, Customs & Central Excise Settlement Commission on 15th February 2022. The Chairman, after perusing the reply had ordered on file on 15th February 2022 as “Application be returned pointing out the defects made out above.” The application was accordingly returned vide letter dated 16th February 2022. The Chairman, after perusing the reply had ordered on file on 15th February 2022 as “Application be returned pointing out the defects made out above.” The application was accordingly returned vide letter dated 16th February 2022. The petitioners did not file any rejoinder controverting these averments made in the affidavit-in-reply nor even bothered to ask for time for filing the affidavit-in- rejoinder. In our view, there is thus no substance in the submission made by Mr.Nankani, learned senior counsel for the petitioners that the application for settlement was not returned by the Settlement Commission but was returned by Superintendent. 57. A perusal of the record clearly indicates that the petitioners themselves have raised various contentions before the Settlement Commission and not before the Superintendent. All such correspondence produced were before the Chairman, Customs & Central Excise Settlement Commission and upon his order, recorded on file various orders which were communicated to the petitioners. Those orders cannot be construed as if the orders passed by the Superintendent and not by the Settlement Commission. 58. In so far as the judgment in case of Mandhana Dyeing Vs. Union of India (supra) relied upon by the learned counsel for the petitioners is concerned, this Court in the said judgment had considered the situation where the show cause notice cum demand notice was issued. In paragraph 14 of the said judgment, this Court held that the object of the legislation under Section 32(e) of the Central Excise Act, 1944 is not to close the door for settlement. The object of the Legislature is to open the doors for settlement. The Court should adopt the construction, which advances, fulfills and furthers the object of the Act rather than the one, which would defeat the same and prevent settlement. Beneficial statutes should not be construed too rigidly as it was for the protection of certain class of persons that the statute was enacted. There is no dispute about the propositions of law laid down by this Court in the said judgment in case of Mandhana Dyeing Vs. Union of India (supra). 59. In this case, there was no show cause notice issued by the respondents against the petitioners as contemplated in proviso (a) to Section 127B(1) of the Customs Act, 1962. There is no dispute about the propositions of law laid down by this Court in the said judgment in case of Mandhana Dyeing Vs. Union of India (supra). 59. In this case, there was no show cause notice issued by the respondents against the petitioners as contemplated in proviso (a) to Section 127B(1) of the Customs Act, 1962. Since this Court is of the view that the said application for settlement filed by the petitioners itself was defective and premature, there is no substance in the submission of the learned senior counsel for the petitioners that the respondents have closed the door for the petitioners for settlement by returning the application for settlement filed by the petitioners. In our view, the said judgment in case of Mandhana Dyeing Vs. Union of India (supra) would not advance the case of the petitioners in the facts of this case. 60. In so far as the reliance placed by the learned senior counsel on the order dated 27th November 2009 passed by the Settlement Commission in case of Venture Impex (supra) is concerned, the said order passed by the Settlement Commission has no precedentiary value. The Settlement Commission in that case, had found substance in the submission made by the assessee/applicant that the applicant must not be deprived of substantive benefit legitimately admissible under the statutory provisions merely on procedural technicalities by rejecting the application at the threshold. At the same time, the Settlement Commission also found substantial merit in the contention of the Revenue that the application should not be proceeded with for settlement without ensuring that a proper written show cause notice had been issued after due completion of investigation. 61. After recording these observations in paragraph 10 of the said order, the Settlement Commission categorically took an assurance from the learned advocate for the applicant that they are also willing for final settlement of case after the department would complete the investigation and would finalise the quantification of differential duty involved in mis-declaration/undervaluation and further that the applicant shall abide by the outcome of investigation by Revenue and would pay any additional amount of duty if so demanded. In view of the said assurance, the Settlement Commission considered it appropriate to admit the application and keep further proceedings for final disposal of the settlement application in abeyance till Revenue would complete the investigation for issuance of a proper show cause notice. In our view, the said order passed by the Set/tlement Commission would not assist the case of the petitioners but would assist the case of the respondents. 62. In so far as the order dated 26th July 2011 passed by the Settlement Commission in case of M/s.AVI Trexim Pvt. Ltd. & Ors. (supra) relied upon by the learned counsel for the petitioners is concerned, the said order has no precedentiary value. Be that as it may, paragraph 15 of the said order clearly indicates that even in the said order, the Settlement Commission had directed the Revenue to expeditiously pursue and complete the investigation and thereafter issue the show cause notice as early as possible. Hearing of the said matter was adjourned to be resumed in due course. In our view, the said order passed by the Settlement Commission would not assist the case of the petitioners but on the contrary would assist the case of the respondents. 63. In so far as reliance placed by the learned senior counsel on the order dated 31st March 2006 passed by the Division bench of this Court in case of M/s.Omega Intl. Vs. The Union of India & Ors. (supra) is concerned, a perusal of the said order clearly indicates that the said order was passed by consent of both the parties and more particularly recording the consent that affidavit of Assistant Commissioner of Customs (P), SIIB (Exports) be treated as show cause notice under Section 124 of the Customs Act, 1962. The said order passed by consent of parties is not a precedent and thus would not advance the case of the petitioners. In this case, the respondents have vehemently opposed the application for settlement since inception on the ground that the same was not maintainable in view of there being no show cause notice. Similar stand is taken by the respondents even in this writ petition. 64. In this case, the respondents have vehemently opposed the application for settlement since inception on the ground that the same was not maintainable in view of there being no show cause notice. Similar stand is taken by the respondents even in this writ petition. 64. In so far as reliance placed on Clause 2 of the Standing Order No.2/2001 dated 7th March 2001 by the learned senior counsel for the petitioners is concerned, in our view, the said condition would not apply to the facts of this case and more particularly in view of the fact that the Settlement Commission has not rejected the application filed by the petitioners for settlement but the said application has been returned to the petitioners. The respondents had pointed out the deficiencies twice to the petitioners in the application for settlement with a direction to cure those defects. Since there was no show cause notice issued by the respondents which is a condition precedent for filing an application for settlement, such application being not in compliance with the provisions of Section 127B read with Rules was not maintainable at the threshold. In any event, in view of those letters addressed calling upon the petitioners to cure the said defects in the application for settlement which were admittedly not cured by the petitioners, there was substantial compliance of Clause 2 of the said Standing Order dated 7th March 2001. 65. In so far as reliance placed on Section 17 of the Customs Act by the learned senior counsel for the petitioners in support of his submission that the petitioners in this case had already self-assessed the duty leviable on such goods and had paid the duties accordingly is concerned, in our view, reliance placed on Section 17 of the Customs Act, 1962 is totally misplaced. For the purpose of attracting the provisions of Section 127B for filing an application for settlement of cases, there has to be an application in respect of the case where show cause notice had been issued to the applicant by the Proper Officer. In our view, till show cause notice is issued to the applicant by the Proper Officer, the petitioners cannot assess the duty or penalty or any other levy on its own by invoking the provision of Section 17 for the purpose of filing application under Section 127B of the Customs Act, 1962. In our view, till show cause notice is issued to the applicant by the Proper Officer, the petitioners cannot assess the duty or penalty or any other levy on its own by invoking the provision of Section 17 for the purpose of filing application under Section 127B of the Customs Act, 1962. In this case, the petitioners filed application for settlement on the basis of self assessed duty and self made laws. 66. In so far as reliance placed on Section 127C (1) and 127C(5) of the Customs Act, 1962 by the learned senior counsel for the petitioners is concerned, in our view, the said stage for issuance of notice in writing to explain as to why the application made by the petitioners should be allowed to be proceeded with before passing an order is concerned, in our view, the said stage did not arise since the said application for settlement was found defective and not maintainable. The Settlement Commission thus had passed a procedural order for return of the application. 67. In so far as reliance placed on Section 127H of the Customs Act which deals with grant of immunity from prosecution and penalty by the learned counsel for the petitioners is concerned, in our view, the said provision can be invoked only if an application is filed in accordance with law and after complying with the mandatory requirements under Section 127B read with proviso before the Settlement Commission. On the basis of defective application or premature application, neither such immunity from prosecution and penalty under Section 127H of the Customs Act can be claimed by the petitioners nor can be granted to the petitioners. There is no automatic grant of immunity from prosecution and penalty or deemed to have been granted in favour of the applicant in case of defective or premature application. 68. In our view, the respondents were justified in returning the application for settlement in view of the petitioners having filed the said application though no show cause notice was issued by the respondents and no proceedings were pending within the meaning of definition of “case” under the provision of Section 127B of the Customs Act, 1962. The respondents have not rejected the said application for settlement but have returned the said application in original. The respondents have not rejected the said application for settlement but have returned the said application in original. In our view, the return of defective application or an application which is premature would not prevent the petitioners from filing proper application under Section 127B as and when occasion arises after complying with all the mandatory requirements under the said provisions. 69. In our view, the petitioners on their own could not have assessed the duty payable on the goods which are the subject matter of two Bills of Entry and could not have paid the duty on its own to contend that the said application was maintainable. If the arguments of the learned senior counsel for the petitioners are accepted, any assessee would file an application for settlement by considering even the correspondence exchanged between the parties or affidavit-in-reply filed by the Revenue in another proceedings as show cause notice and based on such show cause notice, would compute the duty and other levy as may be leviable according to the self-assessment of the petitioners so as to claim immunity from prosecution and penalty. In our view, the writ petition is totally devoid of merit. 70. We accordingly pass the following order :- (i) Writ petition is dismissed. Rule is discharged. (ii) It is made clear that if any application for settlement is filed in respect of two Bills of Entry Nos.6414624 and 6414261, both dated 26th November 2021 after complying with the mandatory requirements under Section 127B(1) read with proviso (a) and the Rules in future, the same shall be considered on its own merit. (iii) The respondents shall not call the petitioners for recording statement for the period of two weeks from today. (iv) Parties to act on the authenticated copy of this order.