2022 (12) TMI 909 - HC - Central Excise

Court upholds denial of cum-duty price benefit due to fraudulent practices in settlement proceedings

The Court dismissed the Writ Petition, affirming the Settlement Commission's order. The Petitioner's request for cum-duty price benefit was rejected due ... 100% Export Oriented Unit (EOU) - Clandestine removal - removal of goods to DTA without permission - Admitting the duty liability as against the duty demand and seeking cum-duty price benefit - violation of principles of natural justice - HELD THAT:- The First contention of the Petitioner is that the case of clandestine removal was not put to the Petitioner and, therefore, the Petitioner was handicapped in meeting the same before the Settlement Commission and that the Settlement Commission has relied upon the facts not put to the Petitioner. There is no merit in this contention. The entire case in the Show Cause Notice is of clandestine removal through M/s. Specialty. Witnesses have been examined. Not only the case against the Petitioner was of the sale of goods to the Domestic Tariff Area in violation of the policy being a 100% EOU but also creating a bogus record to route the sale through a defunct entity. The Petitioner dealt with these allegations in the appeal memo. He was given an opportunity before the Commissioner when the Order-in-Original was passed. Therefore, if the Settlement Commission has taken note of these facts to hold against the Petitioner, it cannot be said there was any breach of principles of natural justice. The second contention is that even assuming there was a removal of goods to DTA without permission, the benefit of cum duty price could not have been denied to the Petitioner - The Settlement Commission has referred to the decision of the Hon'ble Supreme Court in the case of AMRIT AGRO INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., GHAZIABAD [2007 (3) TMI 14 - SUPREME COURT] and the decision of ASIAN ALLOYS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2006 (7) TMI 404 - CESTAT, NEW DELHI] and SARLA POLYESTER LTD. VERSUS COMMISSIONER OF C. EX. [2007 (11) TMI 47 - CESTAT AHMEDABAD]. The Tribunal has held that since all sales were clandestinely done in contravention of the provisions of EXIM Policy and Rules applicable to the 100% EOU, there is no scope to treat the sale price as a cum duty price. Apart from this, the Tribunal has also held that had the Petitioner cleared the goods from their unit and had they loaded the price of goods after duty paid clearance. There was evidence of the price released being inclusive of duty, and therefore, the Petitioner had to show that the price of the goods includes excise duty payable by it, and there is no question of exclusion of duty element from the price determination of the value - In the present case, since the Tribunal has opined that in the light of the transaction of the Petitioner, there is no evidence based on which it could be held that the price realized was inclusive of duty, and therefore, the benefit of cum duty could not be granted. Considering the limited scope of challenge against the order of the Settlement Commission, the Petitioner had to show that the impugned order was in breach of a settled position of law which covered the facts of the Petitioner's case. The order of the Settlement Commission cannot be assailed as if it is an order passed under an ordinary adversarial adjudication or as if the appellate power is being exercised - as per the opinion of the Commission, no reliable documents existed on record. It is in this context that the Settlement Commission concluded that there was no evidence of the price realized being conclusive of duty given the manner in which the goods were removed; the value of the goods as a benefit of cum duty price of clearance of goods could not be granted. Keeping in mind the scope of the judicial review and the ambit of proceeding for the settlement, we are not inclined to interfere in the writ jurisdiction of this Court - writ petition is dismissed. Issues Involved:1. Settlement Commission's rejection of cum-duty price benefit.2. Judicial review scope against the Settlement Commission's order.3. Allegations of clandestine removal and fraudulent clearance of goods.4. Application of relevant legal precedents.Detailed Analysis:1. Settlement Commission's Rejection of Cum-Duty Price Benefit:The Petitioner, a 100% Export Oriented Unit (EOU), admitted duty liability and sought cum-duty price benefit in their settlement application under Section 32E of the Central Excise Act, 1994. The Settlement Commission rejected this request, leading the Petitioner to challenge the decision. The Commission justified its rejection by citing the clandestine and unauthorized clearance of goods into the Domestic Tariff Area (DTA) without necessary permissions, using invoices from a defunct entity, M/s. Specialty Neutraceuticals. The Commission referenced the Supreme Court's decision in Amit Agro Industries Ltd., which held that in cases of fraudulent and clandestine clearances, the sale price cannot be considered as cum-duty price.2. Judicial Review Scope Against the Settlement Commission's Order:The Court emphasized the limited scope of judicial review in cases involving the Settlement Commission, referencing precedents such as N. Krishnan v/s. Settlement Commission and Jyotendrasinhji v/s. S.I Tripathi. The Court noted that interference is permissible only in cases of grave procedural defects, violation of statutory requirements, breach of natural justice principles, or decisions lacking a nexus with the reasons provided. Mere errors of fact or law are not grounds for interference.3. Allegations of Clandestine Removal and Fraudulent Clearance of Goods:The Petitioner was accused of clearing goods worth Rs.59,76,771/- into the DTA without permission, without preparing invoices, and through a defunct entity, thus evading duty payment. The Additional Commissioner confirmed the demand of Rs.33,96,718/- along with interest and penalties, based on the clandestine removal admitted by the Petitioner's Director. The Settlement Commission upheld this finding, noting that the Petitioner used M/s. Specialty to fraudulently route the clearances, and thus, the price charged could not be considered as cum-duty price.4. Application of Relevant Legal Precedents:The Court examined the applicability of legal precedents cited by both parties. The Petitioner argued that the cum-duty price benefit should be granted as per the Supreme Court's decisions in Maruti Udyog Ltd. and Sarla Performance Fibers Ltd. However, the Court found that these cases did not involve fraudulent documentation or clandestine clearances. The Court upheld the Settlement Commission's reliance on Amit Agro Industries Ltd. and similar cases, which supported the denial of cum-duty price benefit in instances of fraud and unauthorized clearances.Conclusion:The Court dismissed the Writ Petition, affirming the Settlement Commission's order. It held that the Petitioner failed to demonstrate any breach of settled legal principles or procedural defects warranting judicial interference. The findings of clandestine removal and fraudulent clearance were substantiated, justifying the denial of cum-duty price benefit. The Court emphasized the limited scope of judicial review in settlement proceedings and found no grounds to overturn the Commission's decision.