9911796707
TMI Blog2013 (1) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the demand of duty of excise on special discount; (ii) imposes a penalty of Rs.15 lacs on the petitioner; and (iii) directs payment of simple interest at the rate of 10% from the period settled amount is due till the date of payment. However, at the hearing, Mr. Sridharan, the learned Senior Counsel appearing for the petitioner has made submissions only challenging imposition of penalty of Rs.15lacs by the impugned Order. 2) Consequent to a search, show cause notice dated 30/11/2005 demanding in the aggregate a duty of Rs.3.30 crores was issued to the petitioner. The notice alleged that during the period April, 2001 to September,2002 the petitioner had cleared partially oriented yarn (POY) of higher grade by downgrading the variety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order dated 8/2/2011 while granting immunity from prosecution, imposed a penalty of Rs.15 lacs on the petitioner besides waiving interest in excess of 10% simple interest. 5) Mr. Sridharan, learned Senior Counsel in support of the petition invites our attention to the Paragraph 15 of the impugned order which reads as under: "15- The applicant has come forward with the plea that the duty demands in respect of the two situations discussed above have not been substantiated and that the liabilities have been admitted to avoid prolonged litigation and in the spirit of settlement. In respect of the flow back of the special discount amount, it has been submitted that the payments were against outstanding dues by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon a decision of the Supreme Court in the matter of Sir Shadi Lal Sugar & General Mills Ltd. and anr. v. Commissioner of Income Tax reported in (1986) 169 ITR Page 705. The decision making process has been vitiated and therefore this court should exercise its jurisdiction and set aside the impugned order to the extent it has imposed a penalty of Rs.15 lacs without any discussions. 6) As against the above, Mr. Vijay Kantharia, Counsel appearing for the revenue relies upon the order of the Settlement Commission and submits that impugned order calls for no interference. This is particularly so as the petitioner has itself opted to forgo the normal process of adjudication and seek settlement. Further, the impugned order has exercised discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had cleared partially oriented yarn of higher grade by down grading the variety and by discharging duty on the lower value. The invoices showed the down graded variety of POY whereas the packing slip and other documents showed clearance of higher grade. Further, during the period from 2000-01 to 2002-03 the applicants had allowed special discounts to select customers and duty was paid on the reduced value. The special discount allowed was received back from the customers. On these two amounts the applicants had not discharged duty as proposed in the show cause notice at the time of removal of goods." Further, in the application for settlement and seeking immunity from penalty, interest and prosecution the petitioner has submitted in Paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the above case the Apex Court was dealing with the order of Tribunal which is a final fact finding and adjudicatory body under the Income Tax Act. While considering the order of the Tribunal, the Apex Court held that any admission for the purpose of tax would not necessarily lead to the conclusion that it was also an admission that amount was concealed. It was held that, in such cases, the revenue has to prove mens-rea on the part of the assessee before imposing any penalty. In this case there is an admission on the part of the petitioner with regard to conduct which alleges deliberate mis-declaration under valuation. Thus in the present facts mens rea was an admitted position and therefore not an issue before the Settlement Commission. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
