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TMI Blog2021 (3) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion apart from imposing token penalties under the provisions of the CENVAT Credit Rules, 2004 as a condition for settling the case and for granting immunity to the petitioner from prosecution under the provisions of the Central Excise Act, 1944. 4. By the impugned order 15.04.2014 in Final Order No.20/2014- C.Ex. in Settlement Application No.SA(E)/68/2013-SC in F.No.V/15/68/2013-SC, the Managing Director of the said company has been called upon to pay a sum of Rs. 25,000/- as penalty under Rule 26 of the Central Excise Rules, 2002. Therefore, W.P.No.20294 of 2014 has been filed. 5. The operative portion of the impugned common order reads as under:- 6.1 In the light of the above, the Bench settles the case under the Central Excise Act, 1944 on the following terms and conditions:- a) The additional amount of Central Excise Duty is settled at Rs. 1,23,56,697/- (Rupees one crore twenty three lakhs fifty six thousand six hundred and ninety seven only) under the Central Excise Act, 1944. This amount has already been paid therefore no further liability subsists in this regard. b) The interest is settled at Rs. 30,51,968/- (Rupees - thirty lakhs fifty one thousand nine hundred a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent has challenged the jurisdiction of this Court to entertain the present writ petitions on the ground of "forum non conveniens". 10. The learned counsel for the second respondent places reliance on the decision of the Honourable Supreme Court in Union of India Vs. Indo Swift Laboratories, (2011) 4 SCC 635 and that of the decision of this Court in Zeenath International Supplies Vs. Commissioner of Customs, 2014 (304) ELT 491 (Mad). 11. The learned counsel for the second respondent also places reliance on a recent decision of this Court rendered in W.P.Nos.23702 and 23703 of 2012 vide order dated 30.11.2020 in the case of Anshuai Electronics Vs. The Settlement Commission, wherein, placing reliance on the decision of the Hon'ble Supreme Court in Kusum Ingot and Alloys Ltd Vs. Union of India (2004) 3 CTC 365, and a decision of the Full Bench of this Court in Sanjos Jewellers Vs. Syndicate Bank And Others, 2007 (5) CTC 305, the writ petitions were dismissed on the ground of "forum non conveniens". 12. Before dealing with the merits of the submission of the learned counsel for the petitioner and the submission of the learned counsel for the second respondent, it would be apt to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Section 11AB and 11AA of the Central Excise Act, 1944 and why an equal amount of penalty should not be imposed under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC on the petitioner. 20. The Show Cause Notice also called upon the petitioner to show cause as to why the capital goods under seized should not be confiscated in terms of Rule 15(1) of the CENVAT Credit Rules 2004. 21. The Show Cause Notice also called upon the Managing Director of the petitioner company (petitioner in W.P.No.20294 of 2014) to show cause as to why penalty should not be imposed on him under Rule 26(1) of the Central Excise Rules, 2002. 22. Under these circumstances, both the petitioners filed application before the first respondent Settlement Commission to settle the case under Chapter-V of the Central Excise Act, 1944. 23. During the proceedings before the first respondent Settlement Commission, the petitioner admitted a liability of Rs. 1,23,56,697/- and paid the amounts. In the application filed before the first respondent Settlement Commission, it was also specifically stated that no interest was payable by the petitioner in terms of the CENVAT Credit Rules, 2004. 24. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the amount payable under sub-rules (5), (5A), (5B) and (5C), it shall be recovered, in the manner as provided in rule 14, for recovery of CENVAT credit wrongly taken and utilised." 30. I shall first deal with the issue relating to jurisdiction of this Court to entertain the present writ petitions and whether at this point of time the writ petitions can be dismissed on the ground of "forum non-conveniens". 31. This doctrine of "forum conveniens" is a well-known doctrine in international law. The courts have held the question of "forum conveniens / forum conveniens" involves balancing the considerations of the interests of the parties involved (especially factors of costs and convenience), as well as wider concerns of convenience and justice to third parties involved in the litigation, wastage of resources, the risk of inconsistent judgments from different courts and justice in the broadest sense, as well as considerations of international comity, i.e., the respect for the jurisdiction of the courts of other countries. 32. In particular, while the claimant's advantages of having the trial in the forum have been downplayed in modern jurisprudence, the cumulative effect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. Therefore, the said decision cannot be cited as an authority to jettison the present writ petitions at the final stage of the cases particularly when there is no doubt that this Court also has jurisdiction to decide the case. 40. here are also no disputed questions of facts or any other inherent weakness that has been pointed out by the respondents for the Court to decide the case. 41. That apart, judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution as held by the Hon'ble Supreme Court in Minerva Mills Vs. Union of India, (1980) 3 SCC 625 and L.Chandra Kumar Vs. Union of India, (1997) 3 SCC 261. 42. Powers of the High Court to exercise its writ jurisdiction under Article 226 of the Constitution of India are subject to two clear principles. First, the decision to entertain or not entertain a particular action under its writ jurisdiction is fundamentally a discretion. Secondly, limitations placed on the court's decision to exercise or refuse to exercise its writ jurisdiction are self-imposed. Writ jurisdiction of a High Court cannot be completely excluded by statute. 43. The Hon'ble Supreme Court in Union of India Vs. Indo- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods or as waste or scrap. 49. Rule 3(5A) of the CENVAT Credit Rules 2004 as it stood during the material period when the capital goods were removed and when the show cause notice dated 14.11.2012 was issued to the petitioner, read differently. Both the amended and an amended provisions are reproduced below:- Sub-Rule 5A of CENVAT Credit Rules 2004 as in force in terms of Notification No. 27/2005-CE (NT) dated 16.05.2005 at the time when the capital goods were removed between 22.11.2011 and 14.3.2012 by the petitioner. Sub-Rule 5A of CENVAT Credit Rules 2004 after the show cause notice dated 4.11.2012 was issued to the petitioner as per Notification No. 18/2012-CA (NT), dated 17.3.2012 with effect from 1.04.2012. If capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty of the "transaction value". If the capital goods, on which CENVAT credit has been taken, are removed after being used, whether as capital goods or as scrap or waste, the manufacturer or provider of output services shall pay an amount equal to the CENVAT Credit taken on the said capital goods reduced by the percentage points calculated by straight line method ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to accompany a payment of amount equal to the Cenvat credit taken on the said capital goods reduced by percentage point calculated by straight line method. 56. The removals by the petitioner of the capital goods were between 22.11.2011 and 14.03.2012 and therefore strictly there was no liability to pay the amounts under Rule 3(5A) of the CENVAT Credit Rules, 2004 as it did not exist in the aforesaid Rules. 57. That apart, only vide Notification No.3/2013 - CE (N.T.), dated 01.03.2013 w.e.f. 01.03.2013, an Explanation was introduced to Rule 3 of the CENVAT Credit Rules, 2004. Explanation read as under:- "Explanation - If the manufacturer of goods or the provider of output service fails to pay the amount payable under sub-rules (5), 5(A), and (5B), it shall be recovered, in the manner as provided in rule 14, for recovery of CENVAT Credit wrongly taken." 58. A further amendment to the aforesaid Rule was introduced vide Notification No.1/2014-CE (NT) dated 08.01.2014. The amount payable under the provision, namely Sub-Rules (5), (5A) and (5B) to Rules 3 of the CENVAT Credit Rules, 2004, were recoverable in the same manner provided under Rule 14 of the CENVAT Credit Rules, 2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber G.S.R. 600(E), dated the 10thSeptember, 2004 and last amended vide Notification No. 18/2013-Central Excise (N.T.) dated the 31st December, 2013 published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R. 808 (E), dated the 31st December, 2013. 60. The first amendment to Rule 3 of the CENVAT Credit Rules, 2004 for the purpose of recovery of amount came into force only on 01.03.2013 vide Notification No.3/2013-CE (NT) dated 01.03.2013 after the petitioner had started paying an amount of Rs. 1,23,56,697/- in installments on various dates between 29.05.2012 and 07.10.2013 to the credit of the second respondent for removals made between 22.11.2011 and 14.03.2012. The above amendment was later substituted vide Notification No.1/2014-CE (NT) dated 08.01.2014. Therefore, question of imposing interest under Rule 14 of the Act cannot be sustained as the Rules did not exist at the time of removals. 61. Thus, the amount payable under Rules 3(5), (5A), (5B) and (5C) of the CENVAT Credit Rules, 2004 which were made recoverable in the same manner provided under Rule 14 of the aforesaid Rules if no amount was paid at the time of removal came into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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