TMI Blog2020 (3) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... n addition, the Settlement Commissioner has granted liberty to the Revenue to take the appropriate action against the remaining Noticees i.e. the appellants herein. Hence, the benefit of KVS Scheme cannot suo moto be extended to the appellants. Reliance placed in the decision of Hon ble High Court of Gujarat in the case of M/S. SHREE NAKLANK LIMITED VERSUS CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH, AHMEDABAD [ 2018 (11) TMI 81 - GUJARAT HIGH COURT] . It was held that it is the assessee who applies for settlement alone whose application would be considered and either granted or rejected in the terms of settlement, fulfilment of such terms by the applicant and the resultant grant of immunity would be only in relation to assessee, who applied for the settlement. There is no warrant under the statutory provision that upon one assessee applying for settlement, such settlement being granted and terms of settlement being fulfilled. Any other assessee even if he hopes to be co-noticee can avoid further adjudication of this case. It was clarified that Department can still proceed against co noticee who was facing only notice on penalty. Jurisdiction of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cee no. 7, M/s. Kamakhya, noticee no. 9, M/s. N.K. Enterprises, noticee no. 11 showing manufacture and clearances of the soap from CPO imported by them illegally for taking exemption under impugned notification and diverting the impugned CPO to noticee no. 2 to 4 without using the said imported goods in manufacture of soap i.e. for the declared intended use. This evidence proves that the various tankers which arrived at the factory of noticee no. 1 at different dates during the relevant period had transported some or the other quantity of CPO under respective GRs and form ST 31 of M/s. Genex Foods. This receipts and ST 3 returns are corroborating the statement of Shr. Harjinder Singh of M/s. H.G. Oil Carries against 3 of the appeals. Despite this evidence, the Director of M/s. Genex Foods Pvt. Ltd., Sh. Rohit Agarwal (one of the appellant) opted to not to appear for rebutting the said evidence but to sent a simple letter alleging the show cause notice to be illegal - The statements on record are in due corroboration of the documents which sufficiently establishes that appellants were knowingly dealing with CPO imported by M/s. Pioneer Soap and Chemicals in a clandestine and ille ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imported CPO is meant for use in manufacture of soap. The Department, however, gathered an intelligence that M/s. Pioneer Soap and Chemicals are misusing the exemption extended vide the said notification by violating the condition thereof as they are diverting the CPO to the open market instead of using the same for the given purpose. During investigation, Department observed that the appellant obtained the Central Excise Registration on 28.12.2004 and thereafter under six BOEs imported 1371.878 MTs of CPO from January 2005 to August 2005 against concessional rate of duty of 20% ad valorem availing thereby total exemption of customs duty of ₹ 1,27,72,140/-. However, the said imported CPO was never used by them for manufacturing soaps as was prescribed under the said notification but was sold in the open market. Thus alleging the evasion of the aforesaid amount of customs duty that a show cause notice no. 1061/24 dated 24.4.2007 was served upon the appellant firm i.e. M/s. Pioneer Soap Chemical, proposing the recovery of the aforesaid amount of duty along with interest at appropriate rate and the proportionate penalty. The show cause notice was also served upon the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haziabad and Shri Rohit Agarwal, Director of Genex Foods Pvt. Ltd. in Ghaziabad. The excise Commissioner Delhi is denied to be proper officer in terms of Section 2(34) of Customs Act and as such is denied to have any jurisdiction to issue the show cause notice. The impugned show cause notice is therefore prayed to be barred by jurisdiction. Learned counsel has laid emphasis upon the decision of the Supreme Court in case of CC Vs. Sayed Ali 2011 (265) ELT 17 (SC) which was subsequently followed by this Tribunal in the case of Teracom Ltd. Vs. CCE (2016) 339 ELT 272 (Del). ii. The law is well settled that when once the case of the main assessee is settled by the Settlement Commission or other competent authority under the KVSS, the co-noticees do not even have to make an application and the case of every co-noticee stands automatically closed as held by the Supreme Court in Union of India Vs. Omkar S. Kanwar (2002) 145 ELT 266 (SC) and further emphasised by the Delhi High Court in Lesag HBB (I) Ltd. Others. Vs. CC (2017) 346 ELT 549 decided on 3.11.2016 in W.P. (C) No. 4819/1999 which are binding. iii. While submitting on merits it is mentioned that there are no sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the factory shall have jurisdiction to issue notice for recovery of differential duty under Rule 8 ibid and not the Assistant Commissioner of Customs at the port of importers under Rule 5 ibid. Decision of this Tribunal in the case of Samtel Colour Ltd. Vs. Collector of Central Excise reported in 2000 (126) ELT 1256 (Tri) has been impressed upon with the mention that the said judgment has been upheld by the Hon ble Supreme Court of India vide its judgement in the case of Samtel Colour Ltd. Vs. Collector 2006 (196) ELT A 145 (SC). The said decision has subsequently been reaffirmed in the case of Cosmo Ferrites Ltd. Vs. Commissioner of Central Excise reported in 2015 (318) ELT A157 (SC). ii. The proceedings against the co-noticees who do not prefer any application before Hon ble Settlement Commission cannot come to a suo moto hault. The immunity which got available to the applicant before Settlement Commissioner including the main noticee cannot be extended to the appellants herein. The learned DR has relied upon the decision in the case of Mamta Garg Vs. CCE Noida 2018 (359) ELT 77 (Tri-Del) and on another decision in the case of Shri Naklank Ltd. Vs. CESTAT Ahmedabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Sl. No.30 of Notification No.21/2002-CU by importing the crude palm oil at concessional rate at Customs duty and diverting the same to open market instead of using the same for the given purpose. The main beneficiary was the first applicant M/s. Pioneer Soap Chemicals. No doubt vide order dated 24.02.2009 the application of Noticee. Sl.No.1,6,5,8,10 13 of the show cause notice under Section 127 B of the Customs Act, 1962 was disposed of thereby imposing penalty upon 6 of the said applicants to the extent as mentioned in the said order. The argument put forth by the Revenue with respect to para 14 of the said order is perused as correct. A perusal of that order dated 24th February, 2009 shows that penalty was imposed upon six of the applicants and the Settlement Commission has given liberty to the Revenue to take action as deemed fit in respect of the other co-Noticees of the impugned show cause notice. Further, perusal also shows that Noticees No.7, 9, 11 12 of the show cause notice were also found to be fake persons existing in the fake documents prepared at the instance of the main Noticee. The remaining three Noticees i.e. at Sl.No.2, 3 and 4 are the appellant herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no warrant under the statutory provision that upon one assessee applying for settlement, such settlement being granted and terms of settlement being fulfilled. Any other assessee even if he hopes to be co-noticee can avoid further adjudication of this case. It was clarified that Department can still proceed against co noticee who was facing only notice on penalty. B. Jurisdiction of Central Commissioner: The basic allegation of the Department is that the importer of crude palm oil at concessional rate of customs duty of 20% ad velorum has misused the exemption extended vide Sl. No. 30 of notification no. 20/2004-Cus as amended vide 20/2004-cus dated 16.1.2004 by diverting the same to open market instead of using the same for the purpose mentioned in the notification i.e. for manufacturing soap. This allegation clarifies that the verification of the compliance of the impugned notification involves customs as well as the excise, as it is the case of import as well as diversion of the imported goods in the local market. Samtel Colour Ltd. (Supra) has already clarified the impugned situation by holding that imported goods or not use as per certificate of registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. Sh. Rohit Agarwal, Director thereof, were being duly heard by the Adjudicating authority below on 26.10.2009 and appellant M/s. A V Agro Products chose to put forth the defence vide their letter dated 20.10.2009. It is quite apparent from the order under challenge that despite ample effective opportunities of personal hearing being given, the appellants have not properly put forth their defence. They had rather adopted a strategy of seeking adjournments and therefore were noticed absolutely non cooperative by the adjudicating authority below. It is thereafter that the matter was decided based on the facts on record and the written reply received by the respective noticee. These observations are sufficient to hold that there is no denial of opportunity of being heard. The grievance of violation of principle of natural justice on this account is therefore not sustainable. As far as the plea of denial for cross examining the witnesses is concerned as already observed there was rather non cooperation on part of the appellant. Irrespective that cross examination is the key for fair trial so as to dug out the actual truth but the same cannot be claimed as a matter of right or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting the CPO from the ports of importation and the date of arrival thereof reflected by the noticee no. 1 in their receipt register, copies of Forms ST31 issued by M/s. Genex Consultant Pvt. Ltd. were collected from the Sales Tax Authorities of Ghaziabad. A scrutiny of Forms ST-31 so collected and the Noticee s CPO receipt register. This evidence proves that the various tankers which arrived at the factory of noticee no. 1 at different dates during the relevant period had transported some or the other quantity of CPO under respective GRs and form ST 31 of M/s. Genex Foods. This receipts and ST 3 returns are corroborating the statement of Shr. Harjinder Singh of M/s. H.G. Oil Carries against 3 of the appeals. Despite this evidence, the Director of M/s. Genex Foods Pvt. Ltd., Sh. Rohit Agarwal (one of the appellant) opted to not to appear for rebutting the said evidence but to sent a simple letter alleging the show cause notice to be illegal. The statements on record are in due corroboration of the documents which sufficiently establishes that appellants were knowingly dealing with CPO imported by M/s. Pioneer Soap and Chemicals in a clandestine and illegal manner, thereby making ..... X X X X Extracts X X X X X X X X Extracts X X X X
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