Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/CASE LAW/2016-17/3161

Whether Settlement Commission can remand the case to adjudicating authority on ground that certain evidence not produced by assessee?

Case:- HH INTERIOR AND AUTO COMPONENTS LTD Vs COMMISSIONER OF CENTRAL EXCISE AND ANR
 
Citation:-2016-TIOL-1037-HC-DEL-CX
 
Brief Facts:-Unless the applicant before it has not stated the true and full particulars or fails to cooperate with it, the CCESC cannot decline to examine the application on the ground that there is difference between the applicant and the Department on an issue arising from the application. There is no finding in the impugned order of the CCESC that the Petitioner before it failed to cooperate with the CCESC. Although Section 32M of the CE Act states that the order the CCESC would be conclusive, judicial review of the said order in a petition under Article 226 of the Constitution of India is permissible.  In the present case, the Court finds that both in the order dated 9th June, 2014, rejecting the first application and the subsequent order dated 3rd September, 2014, rejecting the second application, the CCESC has proceeded on two wrong premises. One was that the diary of Mr. Rai was not before it. However, this error was rectified by it by the order dated 16th November, 2015. The second error was in concluding that since the Department and the Assessee were not ad idem on certain factual details, the matter should be sent back for adjudication before the concerned Excise Officer. The CCESC failed to appreciate that the grounds on which the application can be rejected are restricted to those set out in Section 32-F (1) and Section 32-L of the CE Act.
 
The challenge in this petition by HH Interior and Auto Components Limited is to the orders dated 9th June, 2014, 3rd September, 2014 and 16th November, 2015, passed by the Customs and Central Excise Settlement Commission ('CCESC') under Section 32F of the Central Excise Act, 1944 ('CE Act') dismissing the settlement application filed by the Petitioner under Section 32E of the CE Act. A search took placed in the premises of one Mr. Pawan Goel on 22nd December, 2010 as a result of which certain books and registers were seized. The statement of Mr Goel was also recorded. Consequent thereto the Petitioner’s premises were searched on 19th January, 2011. This resulted in a show cause notice ('SCN') issued to the Petitioner by the Department on 8th July, 2011, raising a demand of Rs.6,24,88,396/- towards Cenvat credit wrongly availed by the Petitioner. Within a short while thereafter, on 21st October, 2011, the Income Tax Department (ITD) also undertook a search in the premises of the Petitioner and seized a diary stated to have been maintained by Mr. Rajeev Rai, an employee of the Petitioner. On 27th June, 2013, the Petitioner filed an application (hereinafter referred to as the 'first application') before the CCESC under Section 32E(1) of the CE Act. In this application, the Petitioner accepted a duty liability of Rs.1,97,69,622/- and interest of Rs.96,01,968/-. It is stated that the documents seized by the ITD were enclosed with this application. It was contended that the figures contained in the diary maintained by Mr Rai should form the basis of the settlement.
 
On 5th August, 2013, the Department filed its report under Section 32F(3) of the CE Act before the CCESC raising a preliminary objection that the documents seized by the ITD were not brought to its notice by the Petitioner during the course of investigation. Meanwhile, the Petitioner also approached the Income Tax Settlement Commission ('ITSC') under Section 245C of the Income Tax Act, 1961 ('IT Act'). The materials before the ITSC included the diaries maintained by Mr. Rai, which had been seized. By the order dated 7th April, 2014, the ITSC allowed the application for settlement to be proceeded with under Section 245D(1) of the IT Act. The Petitioner then filed an application on 21st April, 2014 before the CCESC seeking to bring on record the aforementioned order dated 7th April, 2014 passed by the ITSC. On 9th June, 2014, the CCESC passed a final order rejecting the first application of the Petitioner seeking settlement under the CE Act. The CCESC sent the matter back to the adjudicating authority in terms of Section 32F(5) of the Act. The CCESC in the said order dated 9th June 2014 observed that the diary maintained by Mr. Rai was not produced before the Department during investigation and the existence of such diary had been brought to the notice of the CCESC only at the stage of hearing. Since there was no meeting ground between the Petitioner and the stand of the Department, the CCESC observed that the matter should be "better settled through adjudication". On 27th June, 2014, the Petitioner filed a second application (hereinafter referred to as the 'second application') before the CCESC this time declaring a sum of Rs.2,59,05,014/- towards Cenvat credit wrongly claimed and interest of Rs.1,19,30,190.41/-. The stand of the Petitioner was that the entries in the diary of Mr. Rai represented an accurate and comprehensive enumeration of the transactions undertaken by it. The Department filed its report under Section 32F(3) of the CE Act before the CCESC on 7th August, 2014. It reiterated the objections raised to the first application. It again contended that since Mr. Rai.s diary had not been brought to the notice of the Department during investigation, it could not be relied upon by the Petitioner. On 3rd September, 2014, the CCESC passed the final order rejecting the Petitioner’s second application. The CCESC again observed that Mr. Rai's diary was not before it and, therefore, there was no occasion to revisit the earlier order dated 9th June, 2014 remanding the matter to the adjudicating authority.
 
On 23rd December, 2014, the Petitioner filed an application for rectification of mistake made in the order dated 3rd September 2014 as regards the observation that the diary of Mr. Rai was not before the CCESC. A further application in this behalf was filed on 1st June, 2015.By order dated 15th December, 2015, the CCESC dismissed the Petitioner’s application. It, however, corrected the sentence in its order dated 3rd September, 2014 to remove the words to the effect that Mr. Rai.s diary was not on the record of the CCESC. However, the CCESC was of the view that the above correction did not change the final outcome in regard to both the first and the second application of the Petitioner.
 
 
Appellant’s Contention:- The Petitioner referred to Section 32F of the CE Act as well as Section 32L thereof and submitted that none of the grounds on which the application could be rejected by the CCESC exist in the present case. Relying on the decisions in SSF Plastics India Pvt. Ltd. v. Union of India 2015 (325) E.L.T. 837 (Bom.) = 2015-TIOL-1761-HC-MUM-CXand Cineyug Worldwide v. Union of India (decision dated 22nd January, 2016 of the Bombay High Court in WP No.2474/2015) = 2016-TIOL-159-HC-MUM-ST, he submitted that with the Petitioner having made a full and true disclosure of all facts in its application and with none of the grounds in Section 32-L CE Act being attracted, the CCESC could not have sent back the matter to the adjudicating authority only because there was no consensus between the Petitioner on the one hand and the Department on the other. Secondly he submitted that with the ITSC having held to the contrary on the very same evidence produced by the Petitioner, the order of the ITSC ought to be taken into consideration by the CCESC.
 
 
Respondent’s Contention:-  Department referred to Section 32M of the CE Act, which states that every order of the CCESC under Section 32F(5) of the CE Act shall be conclusive as to the matters stated therein and could not be reopened under the CE Act or any other law for the time being in force. She also referred to Section 32L of the CE Act and sought to support the order of the CCESC. At the outset it requires to be noticed that in its order dated 3rd September 2014 declining to entertain the first application and sending the matter back to the adjudicating authority, the CCESC specifically ruled on the question of maintainability of the second application before the CCESC by the Petitioner. The CCESC referred to Section 32O of the CE Act and in particular Section 32-O (1) (iii) of the CE Act. In any event this part of the order has not been questioned by the Department and the Court need not examine it further.
 
 
Reasoning Of Judgment: .The fact of the matter is that for rejection of an application made to it there are only a few grounds available to the CCESC. Under Section 32F (1) of the CE Act, the CCESC may reject an application even at the preliminary stage if it is of the view that a full and true disclosure has not been made of the material facts by the Petitioner. If, however, the CCESC decides to proceed with the application then the grounds on which it can decline to entertain the application, as stated in Section 32-L of the CE Act, is where the CCESC is of the opinion that the applicant has not cooperated with the CCESC in the proceedings before it. It can then send the matter back to the Central Excise Officer having jurisdiction who can then proceed to dispose of the case in terms of the provisions of the CE Act as if no application seeking settlement had been made. None of the provisions in Chapter 5 of the CE Act dealing with the 'settlement of cases. envisages the CCESC sending the matter for adjudication to the Central Excise Officer because of the differences between the applicant on the one hand and the Department on the other. In other words unless the applicant before it has not stated the true and full particulars or fails to cooperate with it, the CCESC cannot decline to examine the application on the ground that there is difference between the applicant and the Department on an issue arising from the application.
 
There is no finding in the impugned order of the CCESC that the Petitioner before it failed to cooperate with the CCESC. Although Section 32M of the CE Act states that the order the CCESC would be conclusive, judicial review of the said order in a petition under Article 226 of the Constitution of India is permissible. As explained in SSF Plastics India Pvt. Ltd. (supra), the application seeking settlement filed before the CCESC cannot possibly be rejected only because there is a difference between the Assessee on the one hand and the Department on the other. In that case the CCESC rejected the settlement application stating that it could not examine the case without going into a 'lot of details of the dispute'. The High Court while disapproving the order of the CCESC observed as under:
 
If such an approach is adopted, the very purpose of setting up a Commission and enabling settlement of disputes expeditiously and promptly is defeated. That is to encourage settlement of claims which are long overdue and by pendency of which larger public interest cannot be sub-served. Delay in recovery of taxes harms the National economy and one need not over-emphasize this aspect.”
 
In the present case, the Court finds that both in the order dated 9th June, 2014, rejecting the first application and the subsequent order dated 3rd September, 2014, rejecting the second application, the CCESC has proceeded on two wrong premises. One was that the diary of Mr. Rai was not before it. However, this error was rectified by it by the order dated 16th November, 2015. The second error was in concluding that since the Department and the Assessee were not ad idem on certain factual details, the matter should be sent back for adjudication before the concerned Excise Officer. The CCESC failed to appreciate that the grounds on which the application can be rejected are restricted to those set out in Section 32-F (1) and Section 32-L of the CE Act. For the aforementioned reasons, this Court sets aside the impugned order dated 9th June, 2014 of the CCESC rejecting the first application and the order dated 3rd September, 2014 passed by it rejecting the second application. The order passed by the CCESC on 16th November, 2015, to the extent of correcting the mistake as noted does not call for interference. Since the ITSC on the same material appears to have allowed the application filed by the Assessee, the CCESC will take that fact into consideration while hearing the second application afresh. The second application stands restored to the file of the CCESC and shall be listed for hearing before it on 22nd August, 2016.
 
 
Decision:-Petition allowed.
 
Comment:-  The gist of the case is that the Settlement Commission can send the matter back to the adjudicating authority only if it is found that the assessee had not cooperated with the Settlement Commission or has not made full and true disclosure of material facts of the case. However, the Settlement Commission cannot reject an application merely because there is difference of opinion between assessee and department as regards certain facts of the case. Consequently, the matter was restored to the Settlement Commission for decision afresh as the reason for rejecting application by Settlement Commission was beyond provisions of law.  
 
 
Prepared By: - Alakh Bhandari
 
 
 
 
 
 
 
 
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com