AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (1) TMI 24
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....receded by investigations. The Revenue alleged that the assessee/petitioner had clandestinely cleared/removed a substantial quantity of manufactured DG sets from Delhi without payment of Central Excise and further claimed that they were manufactured in its Kathua unit in J&K. It later sought and obtained duty refund in respect of the Kathua unit which was located in the area based exemption scheme, as a part of the benefit admissible to it. The investigations revealed that the manufacturer had cleared 1965 DG sets clandestinely without registration and payment of duty. The total value of the DG sets was `35,90,03,574/- The SCNs alleged violation of Section 11A together with proviso to sub-section 1 of the Customs Act, 1944 (hereafter "the 1....
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....t Commission's jurisdiction. Highlighting on the submission of this part, learned counsel stated that 1965 DG sets were manufactured in Delhi. The petitioner conceded to having removed and claimed 1554 DG sets from Kathua whereas in reality they were never manufactured or cleared from Kathua and were actually manufactured in Delhi, Having admitted that the only difference was in the payment of duty of 411 DG sets, it was stated that the annexures to the two SCNs covered about 195 DG sets and from these, in fact 189 DG sets were actually manufactured in the Kathua which meant that the balance that had to be reconciled or explained were only 27 DG sets. It was submitted that the assessee/petitioner's offer was to repay the amounts received a....
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.... it had even sought adjustment for input credit through Cenvat although the goods were never manufactured or even received at that place. The impugned order of the Settlement Commission inter alia records as follows: "30. The contention of applicant for adjustment of wrong Cenvat Credit of Rs. 1,83,37,218/- availed in their kathua unit with the duty liability at Delhi is not admissible as both the units are two separate assesses and they are required to discharge their respective liability under respective jurisdiction. The bench observes that the Delhi unit was not registered and for availing Cenvat credit the applicant has not fulfilled conditions laid down in Rule 4 of the Cenvat Credit Rules nor maintained documents and accounts as req....
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....tion of the applicant that similar adjustment were made in Settlement Commission earlier order dated 5.2.2014 is not applicable in the present case in as much as the goods are still different & no adjustment can be made. The bench further observes that even the applicant does not full fill eligibility criteria for filing Settlement application. 32. The Bench observed that the applicant has not accepted about 82% of their duty liability and has contested the evidence collected by the Revenue. The revenue in its final report in respect of SCN issued by Delhi-I Commissionerate has clearly stated that in respect of 194 DG Sets, although the engine nos. are identical, it is not ascertainable at this stage whether there was any duplication of DG....
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....icants 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 Commission. It is to be borne in mind that the Settlement Commission is not an adjudicating authority. It is an arbitration forum where a dispute is settled in the interest of both the parties within the framework of law. This principle has clearly been enunciated by the Hon'ble High Court of Bombay in the case of Amrut Ornaments reported in 2014 (305) ELT 365 (Bom....
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....In fact, there were 411 DG sets working out to over 20% of the quantity produced. What is more, to compound the non-payment of duty, the petitioner committed a further violation in claiming that the goods were cleared from Kathua when they were not, and proceeded to draw the revenues and then also sought CENVAT credit. When it approached the Settlement Commission, it never admitted the liability of ` 4.81 crores towards duty demand. It is an attempt to supplement the concession as it were during the course of the proceedings - an indication that it somehow sought to tide-over and close the dispute even though there is no common moot point or the possibility of a moot point with the revenue. It was so observed by the Commission - citing prev....