TMI Blog2022 (2) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... on under the category of litigation sub-category SCN involving duty pending and undertake the process of verification through the designated committee - application allowed. - R/SPECIAL CIVIL APPLICATION NO. 23250 of 2019 - - - Dated:- 1-2-2022 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE Appearance: VASIM MANSURI(8824) for the Petitioner(s) No. 1,2,3 MR DHAVAL D VYAS(3225) for the Respondent(s) No. 2,3 MR PY DIVYESHVAR(2482) for the Respondent(s) No. 1 ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of the constitution of India the writ applicants have prayed for the following relief/s:- 7(A) THIS HON'BLE COURT be pleased quash and set aside the order dated 28.11.2019 and 19.12.2019; AND (B) THIS HON'BLE COURT be pleased to issue writ of mandamus or any other writ/order directing respondents to accept the form of declaration under the category of Litigation sub-category SCN involving Duty pending or any other category and to undertake process or verification by designated committee and to issue statement under Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved under Section 11AB of the Central Excise Act, 1944 at the rate prescribed on the Central Excise Duty amounting to Rs.1,33,82,430/- confirmed hereinabove, from M/s. Sunshine Corporation, New Goodluck Market, B/h. Jaibharat Textiles, Opp. Chandola Talav, Ahmedabad. 41.3 I impose a penalty of Rs. 1,33,82,430/- (Rupees One Crore Thirty Three Lakhs Eighty Two Thousand Four Hundred Thirty Only) on M/s. Sunshine Corporation, New Goodluck Market, B/h. Jaibharat Textiles, Opp. Chandola Talav, Anmedabadunder under the provisions of Section 11 AC of Central Excise Act 1944. 41.4 I impose penalty of Rs.20,00,000/- (Rupees Twenty lacs only) on Shri Sarafrajbhai H. Rangwala, Partner of M/s. Sunshine Corporation, New Goodluck Market, B/h. Jaibharat Textiles, Opp. Chandola Talav, Ahmedabad under Rule 209A of erstwhile Central Excise Rules, 1944, Rule 26 of the Central Excise (No.2) Rules, 2001 and Rule 26 of the Central Excise Rules, 2002 for his acts of omissions and commissions recorded in my findings hereinbefore. 41.5 I impose penalty of Rs.2,00,000/- (Rupees Two lacs only) on Smt. Mumtajbiwi Y. Rangwala, Partner of M/s. Sunshine Corporation, New Goodluck Market, B/ h. Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the later operator of the factory had approached the Customs and Settlement Commission and that the plea of any connection with the appellant herein appeared to be motivated by desiring to distance themselves from the admitted modus operandi and coupled with erasure of records, was intended to avoid lability being fastened on them. Reliance has been placed by Learned Authorised Representative on the decision of the Hon ble High Court of Gujarat in Commissioner of Central Excise, Surat -I v. Neminath Fabrics Pvt Lid [2010 (256) ELT 369 (Guj.)], of the Tribunal in Ahmednagar Rolling Mills Pvt Lid v. Commissioner of Central Excise, Aurangabad [2014 (300) ELT 119 (Tri.-Mumbai)], in Windson Chem Industries vs. Commissioner of Central Excise, Daman [2012 (2) ECS 118 (Tri-Ahd.)] and of the Hon ble High Court of Madras in Sanjay Shah v, Commissioner of Customs, Tuticorin [2011 (264) ELT 211 (Mad.) J] as well as that of the Tribunal in Shivom Ply-N-Wood Pvt Lid v. Commissioner of Central Excise, Aurangabad [2004 (177) ELT 1150 (Tri.Mumbai)] to sustain the submission that the claim of limitation would not apply when the private records do, along with inculpatory statements, estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as lo why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 30th day of June, 2019; (d) who have been issued a show cause notice under indirect tax enactment for an erroneous refund or refund; (e) who have been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before the 30th day of June, 2019; (f) a person making a voluntary disclosure, (i) after being subjected to any enquiry or investigation or audit; or (ii) having filed a return under the indirect tax enactment, wherein he has indicated an amount of duty as payable, but has not paid it; (g) who have filed an application in the Settlement Commission for settlement of a case; (h) persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. (2) A declaration under sub-section (1) shall be made in such electronic form as may be prescribed. 8. The Section 126 of the Act provides for verification by a designated committee. It is a case of the writ applicants that in accordance with Section 125(1)(a) they were eligible to file declaration. Any individual who had f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration came to be rejected on the ground that the correct category would be pending appeal and not show-cause-notice pending . A second form of declaration came to be rejected on the ground that show cause notice is pending for adjudication therefore, the case would not fall under the category of arrears as defined under the Finance (No.2) Act 2019. 15. In such circumstances referred to above, the writ applicants are before this Court. 16. We have heard Mr. Sunit M. Shah, the learned Counsel assisted by Mr. Vasim Mansuri, the learned advocate appearingfor the writ applicants and Mr. Nikunt K Raval, the learned Standing Counsel appearing for the respondents. 17. We are of the view that the respondents should have taken into consideration the fact that once there is an order of remand the entire matter stands revived from its inception. The matter as on date could be said to be pending before the Commissioner. In such circumstances it cannot be said that the matter was finally heard on or before 30.6.2019. The stance of the respondents cannot be said to be in consonance with the object and reasons underlying the scheme. 18. In such circumstances referred to above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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