AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (10) TMI 373
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.... 3. Learned counsel for the petitioners submits that the impugned order passed by the Settlement Commission is contradictory to the provision of Section 32-F of the Central Excise Act, 1944 (hereinafter referred to as the 'Act'). The Settlement Commission has committed manifest error of law in remanding the matter which is against the principles of law laid down by Delhi High Court in the case of Asahi India Safety Glass Limited Vs. Union of India 2005(180) E.L.T. 5(Del.), Bombay High Court in the case of JSK Industries Pvt. Ltd. Vs. Union of India in Writ Petition No.8028 of 2013 decided on 8.12.2014 and Gujarat High Court in the case of Mann Pharmaceuticals Ltd. Vs. Union of India 2014(307)E.L.T. 642. 4. learned counsel for the respondents submits that in view of the detailed facts noted in the impugned order, the Settlement Commission has not committed any error of law to reject the application and to remand the matter to the concerned authority for adjudication. In support of his submission he relied on the Division Bench Judgment in the case of Vinay Wire and Poly Product P.Ltd. Vs. Dir. General of Central Excise 2014(307) E.L.T. 438 and the judgment of Madras Hig....
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.... the application the petitioners accepted the allegations in the show cause notice only for those documents in the seized records which were marked as 'R' on the ground that only these documents pertain to the petitioners' company. They claimed that the other invoices do not pertain to the petitioners' company but are the private business record of Sri S.G. Gupta. 8. The Settlement Commission found that the averment of the petitioners are contradictory in nature inasmuch as they accepted the documents marked with 'R' representing clandestine clearances of goods and on the other hand they stated that they do not accept the charge of clandestine clearances of all the goods. Settlement Commission came to the conclusion that once the petitioners accepted part of the information given in the private record, they cannot simply brush aside the other information. The Commission found the claim of the petitioners to be an afterthought. It also noted that Sri S.G. Gupta, had accepted that the cash recorded in his private ledger was part of the sale proceeds of the goods and differential amount of under valued goods sold to the buyers. The said statement was not con....
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....#39;R' pertain to the applicant firm and are clandestine clearances. The averments of the applicant are contradictory in nature. They have not even any reason for their non acceptance of the genuineness of the invoices in the private record other than those marked with 'R'. Further, the plea that only invoices marked with 'R' pertain to the applicant firm was not taken by them during the investigation. This has come out only in the affidavit of Shri Gupta given as late as in December, 2014 i.e. much after the issuance of the SCN. He was the executive Director of the unit, and it is not credible that he was clearing some of their goods on his private account at a higher price clandestinely to the same buyers who could receive the goods at a lower price legally from the company directly. 33. Once the applicant has accepted a part of the information given in the private record, he cannot simply brush aside the other information at a later stage. The claim that all the private records other than those found with an 'R' in the private account of their executive Director, is an afterthought and this aspect was not informed to the investigating officer....
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....he applicant lends a belief that the disclosure is neither truthful nor complete. 35. The Bench also observes that the applicant has only accepted 10% of the demand and has contested the evidence collected by the Revenue. They have rejected all the other evidence given by the Revenue in respect of their duty demand without convincing explanations. From these facts, it can be inferred that there is no true and correct disclosure by the applicant. 36. Further, the Bench observes that in this case the stand of the applicant and the department are at huge variance. For an issue to be settled by the Commission there has to be convergence and agreement on fundamental facts which is lacking in this case. 37. The Bench observes that Settlement Commission is a forum where the applicant/applicants should come in the spirit of surrender disclosing the full facts and not in a spirit of contention. In the present case as seen from the rival submissions narrated in the preceding paragraphs, the applicant has approached the Commission treating it as an adjudication forum and not in good faith of settling their case which is a prime requirement in a proceeding before the....
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....se not covered by the application but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (3) or sub-section (4). The order passed by it under sub-section (5) shall provide for the terms of Settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make settlement effective and in case of rejection contain the reasons therefor. An order of Settlement Commission shall be void if it is subsequently found by the Settlement Commission that it was obtained by fraud or misrepresentation of facts. From the perusal of the impugned order of the Settlement Commission, we find that the order contains sufficient reasons for rejection of the case. 13. In the case of Vinay Wire and Poly Product P.Ltd. Vs. Dir. General of Central Excise (supra) Division Bench of this Court considered the provisions of Section 32-F and 32-L of the Act and held that a plain reading of provisions of sub-sections (5) and (8) of Section 32-F makes it clear that the Settlement Commission has to pass such order as it thinks fit and it has the power not o....