2013 (10) TMI 238 - HC - Central Excise

Locus Standi of the Assistant Director (Investigation) to challenge the order of Settlement Commission Held that - There is no authorisation produced before us in favour of the petitioner No.2 to challenge the order of the Settlement Commission before this Court by way of a writ petition. Even according to the hierarchy, petitioner No.2 is several levels below the Settlement Commission and the officers manning it. - petitioner No.2 has no locus standi to challenge the order of the Settlement Commission. - petitioner No.2 deleted from the proceedings. Power of Judicial Review - challenge the order of Settlement Commission - majority order versus minority order - Held that - The power of judicial review is more about the decision-making process rather than the merits of the decision itself, while examining and scrutinizing the decision making process, it becomes inevitable to also appreciate the facts of a given case so as to test the decision on the touchstones of illegality, irrationality or procedural impropriety - An evaluation of the facts of the case would necessarily be involved even to record a finding that the decision is irrational - Relying upon R.B. Shreeram Durga Prasad and Fatechand Nursing Das v. Settlement Commission (It and Wt) and Anr. 1989 (1) TMI 4 - SUPREME Court With particular reference to orders of the Settlement Commission. The present case clearly appears to be eminently a case for adjudication and not for settlement. The decision making process adopted by the majority of the Settlement Commission is flawed. The majority opinion rightly posed the question to themselves that the real question is whether the applicant has accounted for all the catechu bought by it and whether any duty liability was incurred by utilizing the unaccounted catechu for the purpose of clandestine manufacture and clearance of the goods. However, it appears to us that they did not examine the question with the insights and incisiveness which the dissenting member employed in examining the question. That has to be examined by the adjudicating authority under the Central Excise Act in accordance with law and the provisions of the Act. We are quite aware of the limits of judicial review as contoured by the authorities to which we have referred earlier. The view taken by the majority in the present case appears to us, with respect, vitiated by irrationality, procedural impropriety and illegality. The majority clearly erred in holding that the applicant has made a full and true disclosure of the duty liability which was not admitted before the central excise authorities and the manner in which such liability was derived. They also erred in holding that the case was simple and did not involve any dispute or complex questions of fact or law which can only be decided by the adjudicating authority and therefore it was a case for settlement by the Settlement Commission. We accord our approval to the reasoning and conclusion arrived at by the dissenting member who constituted the minority. The opinion of the majority is accordingly, quashed and the minority opinion is upheld. The writ petition allowed.

Issues Involved:
1. Locus Standi of the Assistant Director (Investigation) to file the writ petition.
2. Full and True Disclosure by the applicant before the Settlement Commission.
3. Complexity of Issues and the Suitability of Settlement Commission to adjudicate the case.
4. Connection between seized cash and clandestine manufacture and removal of goods.
5. Procedural impropriety and irrationality in the decision-making process of the Settlement Commission.

Issue-Wise Detailed Analysis:

1. Locus Standi of the Assistant Director (Investigation) to file the writ petition:
The court addressed a preliminary point questioning the locus standi of the Assistant Director (Investigation) to challenge the order of the Settlement Commission. The court examined Circular No. 44/2011-CUS and the amendment to Section 28 of the Customs Act, 1962, which retrospectively recognized the Assistant Director as a "proper officer" for assessment purposes. However, the court concluded that this amendment did not authorize the Assistant Director to file petitions before the High Court. Consequently, the court deleted petitioner No. 2 (Assistant Director) from the proceedings but allowed the Union of India (petitioner No. 1) to continue the challenge.

2. Full and True Disclosure by the applicant before the Settlement Commission:
The court scrutinized whether the applicant made a full and true disclosure of duty liability. The majority opinion of the Settlement Commission accepted the applicant's explanation of discrepancies in the catechu records as plausible mistakes, leading to an admission of duty liability of Rs. 81,75,625/-. However, the dissenting member argued that the applicant's admission was based on presumptions and lacked a full and true disclosure. The dissenting member highlighted that the applicant did not provide correct addresses for 17 suppliers, raising doubts about the authenticity of the records. The court found the dissenting member's view more rational, emphasizing that the applicant's disclosure was neither full nor true.

3. Complexity of Issues and the Suitability of Settlement Commission to adjudicate the case:
The court examined whether the Settlement Commission was the appropriate forum to adjudicate the case involving complex issues of fact and law. The majority opinion held that the case did not involve complex issues and could be settled by the Commission. In contrast, the dissenting member pointed out that the case involved disputed facts, such as the authenticity of documentary evidence and the need for cross-examination of witnesses, which required detailed adjudication. The court agreed with the dissenting member, concluding that the case was more suitable for adjudication by the appropriate authority rather than settlement by the Commission.

4. Connection between seized cash and clandestine manufacture and removal of goods:
The court addressed the issue of whether the seized cash was connected to the clandestine manufacture and removal of goods. The majority opinion of the Settlement Commission found no evidence linking the seized cash to the sale proceeds of clandestinely removed goods. However, the court criticized this view, stating that the connection between unaccounted purchases of catechu and seized cash was evident and should have been considered. The court emphasized that the seized cash substantiated the charge of clandestine manufacture and removal of goods.

5. Procedural impropriety and irrationality in the decision-making process of the Settlement Commission:
The court evaluated the decision-making process of the Settlement Commission and found it flawed. The majority opinion's acceptance of the applicant's documentary evidence, produced two years after the investigation, without questioning its authenticity, was deemed irrational. The court highlighted that the applicant had ample opportunity to produce the evidence during the investigation but failed to do so. The court also criticized the majority opinion for overlooking the normal course of human conduct and probabilities in disconnecting the seized cash from the clandestine manufacture of goods. The court concluded that the majority opinion was vitiated by irrationality, procedural impropriety, and illegality.

Conclusion:
The court quashed the majority opinion of the Settlement Commission and upheld the minority opinion, directing the case to be adjudicated by the appropriate authority. The writ petition was allowed with costs assessed at Rs. 25,000/-.

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