2018 (8) TMI 895 - HC - Central Excise

Principles of Natural Justice - Clandestine manufacture and removal - MS Ingots - the petitioner/ appellant had imported MS Scrap for the purpose of using it in production in its own smelter unit and for conversion as ingots - Held that - The Settlement Commission has considered the entire facts and has come to the conclusion that the petitioner/ appellant has not made a true and full disclosure in order to enable the petitioner/ appellant to invoke the process of settlement - the jurisdiction of the Writ Court is restricted to testing the validity of the order of the Settlement Commission on the touch stone of the procedure adopted by the Settlement Commission and the Writ Court cannot go into the question of fact and consider whether the Settlement Commission was right on facts or not. The Settlement Commission had after giving opportunity to the appellant/ petitioner reached the conclusion that the appellant/ petitioner is not entitled to the benefits of the process of settlement and the learned Single Judge has rightly held that the appellant had not made out a case for interference with the conclusions of the Settlement Commission inasmuch as there was no violation of principles of natural justice, on the part of the Settlement Commission - Petition dismissed. Process of re-assessment pursuant to the orders of the Settlement Commission - Held that - The Writ Petition cannot be entertained in view of the fact that there is an efficacious alternative remedy available in the form of an appeal to the CESTAT. The Writ Petition is therefore dismissed on the ground of availability of alternative remedy and in view of the fact that the Writ Petition had been pending. Petition disposed off.

Issues Involved:
1. Validity of the end-use certificates issued by the Central Excise Department.
2. Alleged suppression of production and clandestine removal of MS Ingots.
3. The Settlement Commission's rejection of the petitioner's application for settlement.
4. The maintainability of the Writ Petition against the Settlement Commission's order.
5. The jurisdiction of the High Court under Article 226 to interfere with the Settlement Commission's findings.
6. Availability of alternative remedy through an appeal to the CESTAT.

Detailed Analysis:

1. Validity of End-Use Certificates:
The petitioner claimed that the end-use certificates for 64 out of 74 bills of entry were issued by competent officers of the Department, and thus, the Department could not later invalidate these certificates. The Department contended that these certificates were not based on physical verification, leading to questions about their validity.

2. Alleged Suppression and Clandestine Removal:
The Department issued a show cause notice on 15.01.2008, alleging suppression of production and clandestine removal of MS Ingots, leading to a demand of ?28,18,945/- in duty. The petitioner’s appeal reduced this demand to ?11,60,315/-. A subsequent show cause notice demanded CENVAT credit of ?1,64,43,413/-, later reduced to ?1,43,43,413/- after rectification.

3. Settlement Commission's Rejection:
The Settlement Commission rejected the petitioner’s application, concluding that the petitioner had not made a true and complete disclosure of facts. It also noted that the petitioner did not cooperate with the Commission. The petitioner had admitted a duty liability of ?22,04,747/- and interest of ?4,82,359/-, but the Commission relied on departmental reports and comments, finding discrepancies in vehicle registration numbers used for transporting the imported scrap.

4. Maintainability of Writ Petition:
The Department argued that the Writ Petition against the Settlement Commission's order was not maintainable, citing that the petitioner had not made a full and true disclosure. The High Court agreed, referencing the Supreme Court’s rulings in Commissioner of Income Tax, Jalpaiguri Vs. Om Prakash Mittal and Union of India Vs. Ind-Swift Laboratories Ltd., which restricted High Court interference under Article 226 in such matters.

5. High Court's Jurisdiction under Article 226:
The High Court emphasized that its jurisdiction was limited to testing the validity of the Settlement Commission’s procedure and not to re-evaluate factual findings. The Court cited the Supreme Court’s judgment in Shriyans Prasad Jain Vs. ITO, which restricted High Courts from delving into factual determinations made by the Settlement Commission.

6. Alternative Remedy through CESTAT:
The High Court noted that the order of the Commissioner of Central Excise, Salem dated 27.03.2018, was appealable to the CESTAT. The petitioner had bypassed this remedy, citing the pending writ appeal. The High Court dismissed the Writ Petition on the grounds of available alternative remedy and directed the petitioner to file an appeal within 30 days, which the CESTAT should entertain without considering the limitation period.

Conclusion:
The intra-Court appeal was dismissed, affirming the Settlement Commission’s decision and the Single Judge’s ruling. The High Court underscored the necessity of full disclosure and good faith in settlement applications and upheld the procedural findings of the Settlement Commission. The Writ Petition challenging the Commissioner’s re-assessment order was also dismissed, directing the petitioner to seek remedy through CESTAT.

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