TMI Blog2009 (12) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... orced with evidence. SCN alleging escort officers not accompanying goods to ship. Escorts officers posted on cost recovery basis and respondent duty free shop not liable for failure of Department. - 12703 of 2008 and 2 and 3 of 2008 - - - Dated:- 19-12-2009 - V. Dhanapalan, J. Prof. M. Udhaya Banu, for the Petitioner. S/Shri Habibullah Badsha, Sr. Advocate for C. Mani Shankar, for the Respondent. [Order]. - The order of the eighth respondent, namely, Settlement Commission, dated 4-6-2007, settling the duty liability at Rs. 82,25,502.45 as against the demand of Rs. 3,87,63,211/-, is under challenge in this Writ Petition. 2. First respondent is a company, operating a Duty Free Shop within the premises of Chennai Port. It has been granted a private bonded warehouse by the Commissioner of Customs for storing goods imported without payment of duty and permitted to sell such goods to international passengers and to members of the crew. On 8-7-2006, Central Industrial Security Force (CISF) personnel intercepted an army vehicle found to be carrying cigarette cartons and liquor bottles in bulk quantities. On questioning the driver of the vehicle, it came to light that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n noted down in the sales bills and it was ensured that the bills were signed by the crew members, as required under para 4.1 of the said circular. Therefore, it could not be said that the crew members' signatures in the bills did not tally with those in the declarations made to the department, that too when the declaration forms were not available with the duty free shop of the respondents. The normal practice in any duty free shop is to enter the passport number and the name of the passenger, which was followed by the respondents. The requirements of regulations in paras 4.1, 4.4 and 4.5 of the Circular were all complied with. Under para 5.2, there was a requirement that the internal audit department of the Customs House should carry out checks regularly on the stocks and verify the sales. During the various checks, no questions were raised and no allegations of forgery were made. 6. The contention of the Revenue before the Settlement Commission was that as per the facility circular, para 4.1, the applicants should have ensured that the full signature of the buyer was put on the cash bills; the escort officers had already admitted that they were giving escort reports on a perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of Central Excise assuming that the circular of 5th August, 1985 and 11-4-1994 to interfere with the order passed by the Settlement Commission, which is exercising quasi judicial powers. In the circumstances, can a writ court exercising extra ordinary jurisdiction, when the settlement commission has thought it fit not to grant any instalment, grant instalments assuming that under Section 32F(8) there is an implied power to grant instalments. This court ordinarily, ought not to interfere in the exercise of its extra ordinary jurisdiction with the order passed by the Settlement Commission." 8. I have heard the learned counsel for the parties and also gone through the records. 9. The investigation conducted by the Department concluded that 3004 cash bills were issued to non-eligible persons and the goods diverted to the local market. The defence of the respondents was that they were only required to ensure that the full signatures of the buyers were put on the cash bills. The circular issued by the Department in respect of the operations of the duty free shop did not specify that they should verify the signatures of the buyers and ensure that the signatures were correct. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facility circular issued by the department for the operation of duty free shop. There is no dispute that all the details required as per the circular had been mentioned in the bills. It is also not disputed that the amounts were collected in foreign exchange and remitted as required. 13. It is well settled that when an allegation is made, the burden is on the person who alleges, to prove it beyond doubt and the burden can be discharged only on the basis of concrete evidence and admission statements from the persons concerned or opinion from a technical expert. When there are variations in the signatures, a technical expert could have certified whether both the signatures belonged to the same person or not, which is admittedly not done in this case. 14. It is also a settled law that the show cause notice issued without any tangible evidences and based only on inferences involving unwarranted assumptions is vitiated by an error of law. In this case, the Department has presumed that the signatures on the bills were forged on the basis of a mere visual examination. Such a presumption, unless reinforced with specific and clear evidences, would vitiate the proceedings and result in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them i.e., Rs. 82,25,502.45. By the said order, the Commission awarded simple interest at 10% p.a. on the admitted amount from the date of sale of the goods till the date of actual payment. 18. Above all, in the Division Bench decision cited by the learned Senior Counsel for the respondents in New Bharat Rice Mills case, cited supra, the High Court of Punjab Haryana has held that the Statute has bestowed Settlement Commission with discretionary powers and if such powers have been exercised diligently and reasonably, the same cannot be faulted with. Similarly, in the other Division Bench decision in Alluminium Profiles Limited, the Bombay High Court has held that the writ court, ordinarily, ought not to interfere, in the exercise of its extraordinary jurisdiction, with the order passed by the Settlement Commission. 19. Therefore, the order of the Settlement Commission, dated 4-6-2007 [2008 (226) E.L.T. 289 (Sett. Comm.)], impugned herein, in the considered opinion of this Court, is perfectly valid and does not suffer from any infirmity. As a result, this Writ Petition is dismissed. No costs. Consequently, the connected M.P. Nos. 2 and 3 of 2008 are also dismissed. - - T ..... 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