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TMI Blog2007 (9) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... y the DGCEI was based on the data, retrieved from the computer printouts, accounts and files for a large number of invoices, which was proportionately worked out for the actual values. The Revenue has the grievance also against the Commissioner allowing 10% discount for computing the values, without any discussion in the order. The impugned order is assailed also on the ground that, the concept of revenue neutrality was wrongly invoked contrary to the provisions of sub-rule (3) of Rule 57-E of the Central Excise Rules, 1944 and the subsequently amended Rules. 3. When the matter was called out for hearing, the learned Counsel for the respondents, appearing in all these appeals, raised a preliminary objection to the effect that the impugned order of the Commissioner dated 30th July, 2004 was already declared non est by the Settlement Commission by order dated 31st May, 2005 and, therefore, no appeal can be entertained by this Tribunal against such non est order. It was submitted that, the Settlement Commission had on 31st May, 2005, admitted the applications of the respondents made under Section 32-E(I) of the Central Excise Act, 1944, and in that order had declared that, the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 passed by the Settlement Commission allowing the applications to be proceeded with, was rejected leaving the controversies to be decided by the Settlement Commission. It was also submitted that, the Revenue had not raised any objection before the Settlement Commission against the application of the respondents on the ground that the Commissioner had already made the adjudication order on 30th July, 2004. The Hon ble High Court vide its order dated 10th November, 2005, while rejecting the Writ Petition of the Revenue had observed that, the Settlement Commission shall be free to examine the issue regarding full and true disclosure, before passing the final order, keeping in mind the law declared by the Hon ble Supreme Court in Om Prakash Mittal s case, that a settlement is envisaged under the scheme of the Act, only if the disclosure made by the applicants is a full and true disclosure . It appears from the order of the Hon ble High Court that, the question of the effect of the adjudication order, having already been made on 30th July, 2004, even before the Settlement Commission made the order of admitting the applications, was not at all in issue. Admittedly, the Settlement Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, contended that, if under Rule 8 of the Cenvat Credit Rules, cost of production was accepted, then only the question of revenue neutrality can arise. He submitted that, since the cost of production was not accepted, no such question can arise. He also argued that if credit could be taken, then there cannot be any intention to evade payment of duty. On the aspect of discount of 10%, it was contended that, there was a trade practice of giving discount of even up to 50%, which can be established by the respondents if the matter is remanded to the Commissioner. He also submitted that, the valuation of certain goods for which details of higher price were not available from the hard discs of the computer, was done wrongly at the value of the highest grade of the material. He submitted that, in any event, the issues raised in these appeals of the Revenue can be examined in details by the Commissioner by remanding the matter. He made it clear that, the respondents have not filed any appeal and that they did not want to file any cross-objections as regards the demand of duty confirmed against them and the penalties imposed under the impugned order. 6. The applications for settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emplate the Settlement Commission deciding cases where adjudication orders are already made, before it acquires exclusive jurisdiction. Since the powers were already exercised by the Commissioner on 30th July, 2004 by making the impugned order, there remained no scope for getting those powers exclusively to be exercised by the Settlement Commission on 31-5-2005, when the applications of the respondents were ordered to be admitted. In fact, the Settlement Commission overlooked the significance of the communication dated 13th September, 2004 sent by the adjudicating Commissioner specifically informing the Settlement Commission as under : It is informed that the applicants had participated in the adjudication proceedings, filed their defense and appeared for personal hearing. Therefore, the Commissioner, Central Excise, Visakhapatnam-II has correctly adjudicated the Show Cause Notice C. No. V/15/95/2003 VSP-II adj. dated 1-11-2003 vide Order-in-Original No. 14/2004-04(RP), dated 30-7-2004 and the order was served to the applicants on 9-8-2004. Hence the case is no longer pending before the Commissioner for adjudication and therefore the application is barred under Section 32E of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the orders of the Commissioners. The Committee of Chief Commissioners does not exercise any power of the Central Excise Officers, but is invested with a special function of directing appeals to be filed after considering the legality and propriety of the Commissioner s order. The definition of Central Excise Officer in Section 2(b) does not include the Committee of Chief Commissioners. The contention that, the Committee could not have decided to file an appeal because the Settlement Commission had exclusive jurisdiction in the case, is, therefore, misconceived. Furthermore, since the case was already adjudicated upon before the Settlement Commission, could have claimed exclusive jurisdiction, there was no case pending that could be decided, after the Settlement Commission rejected the applications finally and sent the matter back to the Commissioner. It is, therefore, clear that, the appeals filed by the Revenue against the impugned order are maintainable before this Tribunal under Section 35-B(1)(a) of the Act and the jurisdiction of this Tribunal is in no way impaired by any observation of the Settlement Commission in its order dated 31-5-2005 that the order of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for the reduction in the demand, in a case where there is overwhelming evidence showing that the values declared for assessment were manipulated and goods were removed without proper assessment of duty and further that the units of the respondents had resorted to massive under-valuation of goods by suppression of material facts with intent to evade payment of duty, as held in paragraphs 160 and 161 of the impugned order by the Commissioner himself. The Revenue had given broad details, parameters of the computations, as also specific details in the notes to annexures D-3 to D-14 of the show cause notice. While the Commissioner took note of the contentions in paragraph 74 of the impugned order, he reduced the demand by a casual observation in paragraph 164 of the order that, he did not find much support from the facts of the case. There was overwhelming evidence showing that as per the computer record, retrieved from the hard disc, the goods which were under-invoiced in the statutory records, were actually sold at a much higher price. Therefore, even in respect of goods covered by some invoices, which did not have corresponding entries in the data retrieved from the hard discs, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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