TaxTMI 
TaxTMI 
2014 (12) TMI 652
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.... in the show cause notice dated 27.10.2009, was confirmed and wrongly availed CENVAT credit of Rs. 1,43,43,417/- was demanded, apart from imposing equal penalty on the petitioner company as well as the Managing Director of the company. 4. A show cause notice dated 15.01.2008, was issued to the petitioner calling upon them to explain as to why action should not be taken for suppression of production of clearance of MS Ingots, demanding duty and proposing to impose penalty and levy interest. After considering the objections submitted by the petitioner, an order was passed on 07.01.2009, confirming the proposal in the show cause notice. The petitioner preferred an appeal before the first Appellate Authority and the appeal was dismissed confirming the order passed by the Original Authority. The petitioner preferred further appeal to the CESTAT and the same was pending. At that juncture the Director General of Central Excise Intelligence (DGCEI) issued a show cause notice dated 27.10.2009, demanding CENVAT credit of Rs. 1,64,43,413/-. It is submitted by the petitioner that the allegations in the second show cause notice were entirely based on the statements, which were recorded from ....
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....dmitting the duty liability of Rs. 22,04,747/- along with the interest of Rs. 4,82,359/-. The Settlement Commission by order dated 20.01.2012, allowed the case to be proceeded with. The second respondent filed their comments on 07.03.2012, stating that the end-use certificate issued by the officers, were not based on physical verification of the case and therefore, the validity of the end-use certificates were questioned. 5. The petitioner filed re-joinder to the comments furnished by the department stating that the department is trying to invalidate the certificate issued by their own officers just to defend the case and such belated stage, doubt cannot be raised on the authenticity of the certificate. Further the file notings filed by the jurisdictional officers were also placed to establish that the end-use certificate were validly issued. The petitioner also denied the other allegations made in the comments filed by the department before the Settlement Commission. The petitioner was heard by the Settlement Commission and by order dated 09.10.2012, the Settlement Commission held that the petitioner has not made a true and complete disclosure and under such situation, there is....
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....ication No.21 of 2004, dated 01.03.2002 and the petitioner having produced the end-use certificate issued by the jurisdictional Central Excise Officer, there is absolutely no justification on the part of the department to disbelieve those certificates. Further, it is submitted that the petitioner made full and true disclosure before the Settlement Commission and admitted the duty amount of Rs. 22,04,747/- and interest of Rs. 4,82,359/-. However, the Settlement Commission without considering the petitioner's contention, solely relying upon the reports/comments submitted by the second respondent, rejected the application. Further, the learned counsel referred to the sample end-use certificate and the information which was secured by the petitioner under the Right to Information Act by communication dated 18.03.2011, to demonstrate that the end-use certificates were issued by the respondent's office and it is not a fabricated document and the respondent cannot disbelieve the said document and the findings rendered by the Commission is wholly erroneous. Further, the learned counsel elaborately referred to each one of the allegations made against the petitioner and submitted tha....
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....e quashed. Further, it is submitted that the statement of witnesses recorded were not corroborated during cross examination and such statements have been relied on for imposing penalty, which is opposed to the principles of natural justice. Further, it is submitted that the impugned order has been passed without considering the merits of the matter and therefore, the impugned order is liable to be quashed. 12. Further the learned counsel appearing for the petitioner contended that the Settlement Commission did not consider the merits and details of the application submitted by the petitioner, the effect of the exemption notification and in terms of the provisions of the Act, the Settlement Commission is bound to consider the merits of the contention and it has passed an order ignoring the provisions of the law and therefore, the order passed by the Settlement Commission is liable to be set aside. In support of said contention, reliance was placed on the decision of the Bombay High Court in the case of the Commissioner of Customs (Import) vs. Noshire Moody in W.P.No.2426 of 2012, dated 26.04.2012 and the decision of this Court in the case of M/s.Techno Rubber and Plastics vs. Cus....
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....S. On comparison of the above said Registers, it is noticed that certain vehicle numbers were inconsistent and were at variance. It has been admitted by Shri.S.Vasudevan, General Manager of the petitioner company, in his statement dated 04.05.2009, that once the MS Scrap is loaded on to a vehicle at the CFS, it will reach the factory, which means that the consignment is not transferred to another vehicle enroute. Further verification conducted at RTOs with respect to the vehicle registration numbers purported to have been used for transportation of scrap from the port to the factory as appearing in the Registers seized from the petitioner, revealed that certain vehicle registration numbers were allotted to two wheelers, cars and tankers which are incapable of transporting such goods. 15. Further it is submitted that after filling the Bill of Entry and its assessment thereon, the goods were moved to CFS either in a trailer or in a lorry, where Customs examination of the scrap takes place after the clearance from the Customs, Form XX is prepared by M/s.Sealine Forwarders, in the name of the buyers of M/s.Subha International. Though the Bills of Entry were filed in the name of M/s.....
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....nd repeatedly adjournments were taken. Therefore, the Commissioner proceeded to hear the counsel for the petitioner and pass the impugned order and the petitioner if aggrieved, has to prefer an appeal to the Tribunal and the Writ Petition is not maintainable. In support of his contention, the learned counsel referred to the decision of the Bombay High Court in the case of Santogen Textile Mills Ltd., vs. Union of India, reported in 2002 (143) E.L.T., 289 (Bom), which was confirmed by the Hon'ble Supreme Court in (2002) 145 ELT 162. Reliance was placed on the decision of the Hon'ble Division Bench of this Court in the case of S.V.Shankar vs. Settlement Commission (Income-tax and Wealth-Tax) & Anr., reported in [2007] 292 ITR 633; the decisions of the Hon'ble Supreme Court in the case of Sanghvi Reconditioners Pvt., Ltd., vs. Union of India, reported in 2010 (251) E.L.T. 3 (SC) and Union of India and Ors., vs. Ind-Swift Laboratories Ltd., reported in [2011] 40 VST 1 (SC), and the decision of this Court in the case of Marshal Power & Telecom (I) Ltd., vs. CUS., & EX. Settl. Comm., Chennai reported in 2011 (269) E.L.T., 465 (Mad). 18. The learned counsel appearing for th....
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....settlement of cases by the commission is an exception to the normal procedure of adjudication of duty liability and other deterrent provision like penalty and prosecution. Any order passed by the Commission, which was obtained by fraud or misrepresentation would render the order as void. One of the foremost essential condition for settlement of the dispute is that the application for settlement shall contain a full and true disclosure of duty liability, which was not being disclosed before the proper officer, the application shall contain the manner in which such liability has been incurred and the additional amount of customs duty accepted to be payable. 21. It is to be noted that the requirements of disclosure of duty liability not disclosed to the proper officer and amount of additional duty accepted as payable are two different aspects and they do not refer to the same thing. The expression 'duty liability' not disclosed before the proper officer really refers to how the liability was attracted or how the liability arose. It has to be now seen as to whether the petitioner apart from fulfilling the essential ingredients to invoke the jurisdiction of the Settlement Com....
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....by the petitioner. The petitioner contend that 400 vehicles were utilised for transportation of the material and the percentage of the discrepancy in the registration number is very meagre and therefore that could not have been a reason to disbelieve the end-use certificate in respect of the entire consignment. 25. It is to be pointed out that though such stand is taken even to that extent the petitioner did not make full and true disclosure of the duty liability, which was obviously not disclosed to the proper officer. Therefore, the Settlement Commission examined the merits of the contention vis-a-vis, the stand taken in the Commissioner's reports/comments. 26. After considering all the facts, which were placed, the Commissioner recorded that the petitioner has not made a full and true disclosure. In the light of the said finding, this Court is not inclined to exercise its jurisdiction under Article 226 of the Constitution of India and examine the factual finding recorded by the Settlement Commission, as if, this court is the Appellate Authority over the findings of fact recorded by the Settlement Commission, by which the Settlement Commission declined to entertain the ....
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....els & Ors., (supra) the Court found that the Settlement Commission has not gone into the details of the issues raised by the petitioners therein on certain grounds which were not accepted. However in the case of hand, this Court is satisfied that the Commission examined the contentions of the petitioner and on facts found, there was no full and true disclosure. 30. The case of Ran India Steels Pvt. Ltd.,(supra) was a case, where the application for settlement was dismissed at the threshold without even considering the Commissioner's report, therefore, this Court interfered. The said decision is factually different and cannot advance the case of the petitioner. The decision of the Bombay High Court in the case of Noshire Moody (supra), was a Writ Petition filed by the Department against the order of Settlement Commission, which entertained the application and granted the relief to the applicant. On facts, the Court found that the findings recorded by the Settlement Commission cannot be interfered. The said decision is of no assistance to the case of the petitioner. Apart from the fact that the petitioner has not made full and true disclosure, the Settlement Commission has rec....