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TMI Blog2018 (8) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... st respondent in the Writ Petition to hear the application filed by the petitioner in application No. S.A.(E)/01-02/2012-SC afresh on merits. 2. The claim of the petitioner before the Writ Court was that it is a Private Limited Company engaged in manufacture of MS Ingots falling under Chapter 72 of the Central Excise Tariff. In the course of business, the petitioner/ appellant had imported MS Scrap for the purpose of using it in production in its own smelter unit and for conversion as ingots. Alleging that the petitioner had indulged in suppression of production and clandestine Removal of MS Ingots, the Department had issued a show cause notice to the petitioner/ appellant on 15.01.2008. Pursuant to the said show cause notice, after considering the objections of the petitioner an order came to be passed on 07.01.2009, confirming the proposal in the show cause notice, demanding a duty of Rs. 28,18,945/- along with penal consequences. 3. The appeal filed by the appellant before the Commissioner, Central Excise Appeals was partially allowed and by an order dated 05.10.2009 the duty demanded was reduced to Rs. 11,60,315/-. As against the order of the appellate Authority the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner/ appellant filed a rejoinder contending that the end-use certificates were issued after proper verification and having issued the end-use certificates the Department cannot go back and contend that the end-use certificates were not valid. However, Settlement Commission by an order dated 09.10.2012 concluded that the petitioner has not made a true and complete disclosure of the facts and upon such conclusion, the Settlement Commission sent back the case to the jurisdictional Commissioner for disposal in accordance with law. The Settlement Commission also observed that the appellant has not cooperated with the Settlement Commission for arriving at a fair settlement of the entire dispute. It is against the order of the Settlement Commission dated 09.10.2012, the petitioner/ appellant had filed a Writ Petition in W.P.No.30162 of 2012. Subsequently, it appears that, the 2nd respondent commenced the adjudication proceedings and by an order dated 15.04.2014, confirmed the proposal in the show cause notice dated 27.10.2009 claiming CENVAT credit to the tune of Rs. 1,43,43,413/-. As against the said order the petitioner had filed W.P.No.15706 of 2014. 7. Both the Writ Petitions were ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with in accordance with law. 11. Per contra Mr.V.Sundareshwaran, learned Senior Standing Counsel appearing for the Department would raise a preliminary objection regarding the maintainability of the Writ Petition against the order passed by the Settlement Commission. He would submit that once the Settlement Commission had rendered a finding that the petitioner/ appellant has not made a full and true disclosure and on that ground rejected the application and directed adjudication by the concerned jurisdiction Assessing Officer, this Court cannot under Article 226 interfere with the said order of the Settlement Commission. The learned Senior Standing Counsel would also rely upon the judgment of the Hon'ble Supreme Court in the Commissioner of Income Tax, Jalpaiguri Vs. Om Prakash Mittal reported in (2005) 184 ELT 3 and Union of India and others Vs.Ind-Swift Laboratories Ltd., reported in (2011) 40 VST 1. 12. Arguing further, on the merits, Mr.V.Sundareshwaran, would submit that the import scrap registers seized from the factory premises of the appellant under magazars on 14.06.2006 disclosed the registration numbers of the vehicles under which the imported consignments were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure of the Settlement Commission, the assessee must act with utmost good faith and even an element of bad faith would dis-entitle the assessee from invoking the process of settlement which also would pave the way for the assessee to avoid penal consequences and criminal prosecution. 16. Refuting the contentions of Mr.K.Jayachandran that the appellant had made a true and full disclosure since it has paid the additional duty accepted by the Assessee Mr.V.Sundareshwaran would submit that by itself would not amount to a true and complete disclosure of facts. Pointing out that such disclosure or payment of duty should have been done in good faith, the learned counsel would contend that a mere payment of additional duty cannot be construed as a full and true disclosure of the duty liability. The various allegations made against the petitioner including diversion of the imported scrap which was imported on a lesser customs duty with an undertaking that it will be used in manufacture of ingots by the petitioner/ appellant itself, the mismatch in the registration numbers of the vehicles would to a certain extent have a bearing on the decision as to whether the settlement commission w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de out a case for interference with the conclusions of the Settlement Commission inasmuch as there was no violation of principles of natural justice, on the part of the Settlement Commission. We are therefore of the view that the dismissal of the Writ Petition in W.P.No.30162 of 2012 by the learned Single Judge does not call for any interference and accordingly the intra-Court appeal will stand dismissed. However, in the circumstances there will be no order as to costs. W.P.No.15109 of 2018:- 20. This Writ Petition is posted along with the intra-Court appeal in W.A.No.358 of 2015 before us, pursuant to the order passed by the Hon'ble Chief Justice on the basis of the request made by the Writ Petitioner. The challenge in the Writ Petition is to the order of the Commissioner of Central Excise, Salem dated 27.03.2018, in and by which, the Commissioner had taken up the process of re-assessment pursuant to the orders of the Settlement Commission dated 09.10.2012, whereby, the Settlement Commission had dis-allowed the settlement process and directed the matter to be remitted to the concerned jurisdictional commissioner for assessment in accordance with law. Admittedly, the order d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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