TMI Blog2019 (7) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to be conclusive is that both the parties, namely, the Assessee and the Revenue, are for ever bound and to remain within the four corners of the orders of the Settlement Commission and this is the specific negation of re-opening of any proceedings under the Act (The Customs Act,1962) or under any other law for the time being in force (including the Central Excise Act,1944, or the Cenvat Credit Rules made thereunder). Giving a finality and conclusiveness to the orders of the Settlement Commission has to be taken to its logical end and the position inter se between the parties flowing from the order of the Settlement Commission cannot be allowed to be disturbed in any manner, much less any indirect gain or duty paid can be allowed to be taken back by the Assessee under the provisions of any other law, including the Central Excise Act and the Cenvat Credit Rules - The case of the Revenue that even Rule 9 (1) (b) of the Cenvat Credit Rules,2004, prohibits the credit of excise duty or customs duty in case the same has been paid and recovered from the Assessee on account of earlier non-levy or short-levy, by reason of fraud, collusion, wilful misstatement or suppression of facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended before the authorities that the goods in question were second hand and the same were supplied 'free of cost' by their related party in South Korea and only the packing and logistics costs were borne by the importer-assessee, which were reflected in the Invoice produced. 4. The Assessee, at the state of Show Cause Notice itself, straightaway approached the Settlement Commission, constituted under Chapter XIV-A of the Customs Act, 1962, for settlement of the dispute and agreed before the said Settlement Commission that it would be willing to pay additional Customs Duty, subject to the grant of immunity from penalty and prosecution in terms of the provisions under Section 127-A to 127-J of the Customs Act,1962, contained in Chapter XIV-A of the said Act. 5. Accordingly, the Settlement Commission passed an order on 31.05.2007 and imposing the duty liability of ₹ 18,01,115/-, granted the aforesaid immunity from confiscation, penalty and prosecution under the Customs Act,1962, and under any other Central Acts. By way of 'disclaimer' in paragraph 4 of the short order passed by the Settlement Commission, it was stated that the 'Settlem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessee nor the customs duty paid by the Assessee under the orders of the Settlement Commission could be held to be disentitled to the Cenvat Credit in terms of Cenvat Credit Rules,2004, under the Excise Law. 9. The learned counsel drew our attention particularly to Rule 3 Sub-clause (7), which stipulates that a manufacturer or purchaser of a final product shall be entitled to take credit of the additional duty leviable under Section 3 of the Customs Tariff Act equivalent to the duty of excise specified under the clause specified therein, which is, in short, called 'CVD'. Further, referring to Rule 9 of the same Rules, the learned counsel submitted that Rule 9 of the Cenvat Credit Rules,2004, permits documents and accounts to be produced by the manufacturer to claim Cenvat Credit and, therefore, the production of a Supplementary Invoice or a Challan in proof of payment of such CVD or customs duty is enough proof and since the said levy was not on account of non-levy or short-levy by reason of fraud, collusion or wilful misstatement or suppression of facts, the credit in question under Cenvat Credit Rules,2004, ought to have been allowed by the authorities belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further submitted that merely because the Assessing Authority, in pursuance of the Show Cause Notice, was not allowed to give any findings with regard to fraud, collusion, misrepresentation or suppression of facts, it does not entitle the Assessee to claim Cenvat Credit under Rule 9 (1) (b) of the Cenvat Credit Rules,2004, later on, of the Duty so paid under the orders of the Settlement Commission. He also submitted that the order of the Settlement Commission at the stage of Show Cause Notice resulted in a Final Order in favour of the Assessee, giving him immunity from penalty and prosecution, subject to the condition of payment of additional Customs Duty determined, which was found to be payable, setting aside the undervaluation or depressed valuation of the imported items shown in the Invoice and, therefore, such Customs Duty paid by the Assessee cannot be said to be without the taint of suppression of facts and misrepresentation and, therefore, it cannot be allowed to be set off under any other law, including Cenvat Credit Rules under the Central Excise Act, in view of Section 127-J of the Customs Act. He, therefore, submitted that the authorities below, in the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter XIV of the Customs Act,1962, for settlement of the dispute. 16. The provision of Chapter XIV-A of the Customs Act,1962, providing for settlement of disputes by the Settlement Commission is an independent Code and while it is provided to enact a remedial forum for putting an end to disputes in a quicker and more peaceful manner, it gives several advantages to the Assessees and the disputing parties mainly in the form of immunity from penalty and prosecution, which rigor of law would have been otherwise applicable to the Assessee besides the determination of disputed amount of duty under the provisions of the Act. The impermissibility of reopening of the order passed by the Settlement Commission in any proceeding under the Customs Act itself or under any other law does not only mean Assessment or other legal proceedings, but the said provision is intended to put an end to any possibility of later on tinkering, modification, adjustment or disturbance of what has been achieved by that order. 17. The novel argument of the learned counsel for the Assessee that the customs duty paid under the orders of the Settlement Commission is nothing but CVD, which, per se, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entation of the assessable value of the goods to the extent of ₹ 49,02,861/-, which was declared only at ₹ 13,93,827/-. Merely because the said Show Cause Notice did not result in any Final Order at the instance of the Assessee itself, it does not mean that there was no case of fraud or misrepresentation or wrong declaration on the part of the Assessee. Therefore, even on the applicability of Rule 9 (1) (b) of the Cenvat Credit Rules,2004, we find that the denial of Cenvat Credit to the Assessee in the present case independently was also justified. 21. Viewed from any angle, we do not find any merit in the contention raised by the learned counsel for the Assessee that the Assessee was independently entitled to Cenvat Credit in respect of the CVD paid by it under the orders of the Customs Duty Settlement Commission in the present case under the provisions of Cenvat Credit Rules,2004. Thus, the present Appeal of the Assessee is liable to be dismissed. 22. The judgments relied upon by the learned counsel for the Assessee also are of little help to him. The Allahabad High Court's decision in Silver Oak Laboratories Pvt. Ltd., cited above, merely turne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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