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TMI Blog2015 (6) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... haziabad was searched by the officers of Excise Intelligence on 6-11-2009. Simultaneously searches were also conducted in the factory premises of the appellant at Roorkee, the depot premises at Rudrapur, the depot premises at Gurgaon and factory premises of M/s. Su-Kam Power System Ltd., at Baddi. 3. A show cause notice dated 9-7-2012 was issued to the appellants on the basis of documents/records resumed, statements recorded and enquiries conducted. The allegation is that the appellant, M/s. Hari Om Udyog, Ghaziabad was indulging in evasion of excise duty by way of under-valuation/suppression of actual value by showing clearances of finished goods and fabricated invoices and by showing clearances of finished goods, manufactured at the Ghaziabad plant, from their other plant situated in the exempted area at Roorkee, Uttarakhand. The disputed period is from June, 2007 to 19-11-2009. A demand of Rs. 1,11,83,866 (Rupees one crore eleven lakhs eighty three thousand eight hundred and sixty six) was raised towards Central Excise duty. 4. Before going into the merits of the case, we think that it is necessary to consider the issue whether the impugned order is an ex parte order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by the appellant to the Commissioner, Ghaziabad informing that the application to be filed before the Settlement Commission is under process and that they would submit the evidence of filing the same within one month. Thereafter it is seen that the impugned order was passed on 28-2-2014. The counsel for the appellant submitted that the appellants were denied opportunity not only to file reply and also of personal hearing but also to approach the Commission to have the case settled. 5. The ld. DR, defended the impugned order and submitted that the appellants were given three chances for personal hearing and also sufficient time to file reply. He urged that there is no statutory provision under the Central Excise Act, 1944 or in the rules made thereunder to keep the adjudication proceedings in abeyance on the request of the party to file an application before the Settlement Commission. 6. On examination of the factual scenario with regard to the various dates preceding to the passing of the impugned order, we find that the impugned order suffers from infirmity of being an ex parte order. The search of the premises of the appellant and resumption of documents/laptop was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r be passed by this Tribunal referring the case to the Settlement Commission. At this juncture, it is worthy to mention that the appellant had filed writ petition (Writ Tax No. 242 of 2014) before the Hon'ble High Court of Allahabad, the jurisdictional High Court, praying among other things to set aside the impugned order and an order allowing the appellants (petitioners) to file an application before the Settlement Commission. The Hon'ble High Court vide order dated 16-4-2014 dismissed the writ petition holding that the appellant has an alternative remedy before this Tribunal against the order of adjudication. The appellant has, thereafter, filed this appeal. 8. Reverting back to the factual scenario, it is correct that the appellant had intimated more than once, the adjudicating authority, about his intention to file application before the Settlement Commission for settlement of case. Moreover, out of the duty demand of 1.11 crores the appellant deposited an amount of Rs. 75.14 lakhs. The copy of the challan's produced along with the appeal shows that the appellant has paid an amount of 50 lakhs on different dates from the date of the search, 6-11-2009 to 13-11-2009. This a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her decision makings involved. In such situation, to deny reasonable time to the assessee totally ignoring his request is not warranted. 10. In the case in hand, the show cause notice itself is dated two and a half years after conduct of search. There is much delay to return the documents resumed. In such circumstances, the appellant/assessee ought to have been given reasonable time to prepare the application for presenting before the Settlement Commission when the adjudicating authority has nothing to suspect the bona fides of the appellant's request. 11. The objectives of setting up of the Settlement Commission are to provide an alternative channel for dispute resolution for the assessee and to expedite payment of Customs, Central Excise, and Service Tax, involved in disputes by avoiding costly and time-consuming litigation process. It also provides an opportunity to taxpayers to come clean who may have evaded payments of duty. The scheme encourages quick settlement of disputes and saves the worries of prosecution in certain situations. As such the scheme is an alternative dispute resolution scheme which augments tax collection preventing the revenue being held up in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OL-1201-HC-MAD-ST = 2015 (39) S.T.R. 563 (Mad.). The Hon'ble High Court therein has set aside the impugned order and allowed two weeks' time to the petitioner to approach Settlement Commission. The said decision of the Hon'ble High Court of Madras cannot be applied to the case in hand, for the simple reason that the Hon'ble High Court while deciding the case was exercising its writ jurisdiction. Whereas, the Tribunal has no power to refer a case to Settlement Commission. The national litigation policy is to reduce litigations by promoting alternate dispute resolution mechanism by settlement of cases. It is unfortunate that the appellant was denied such an opportunity to settle the case by not allowing reasonable time even after repeated requests. For the above reasons, we are not able to accept the contention of the appellant that this Tribunal ought to allow the appellant a chance to approach the Settlement Commission after setting aside the impugned order. 14. From the foregoing discussions, we set aside the impugned order and remand the matter to the adjudicating authority for de novo adjudication. The adjudicating authority shall give the appellant time to file reply and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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