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TMI Blog2010 (12) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation of any Hawala payment or any evidence that the proceeds received were in respect of anything other than the export of goods in question, liability accepted by the assessee is only in respect of non-fulfillment of export obligation which in any case has nothing to do with sales already made for which addition has been made, no infirmity in the approach adopted by the ITAT in upholding the order of the CIT(A) which was passed in accordance with the final order of the Settlement Commission as the same has been impliedly accepted by the Revenue. Against revenue. - ITA No. 1621/2010 - - - Dated:- 21-12-2010 - A.K. Sikri, Suresh Kait, JJ. Sanjeev Sabharwal, Sr. Standing Counsel with Utpal Saha, Adv. for the Appellant Sant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... travention of various revenue laws of the country. In pursuance of this alarming report, the department initiated reassessment proceedings under section 147 of the Act. 3. The assessee, having received the notice dated 28.03.2002, issued by the department under section 148 of the Act filed its return dated 26.04.2002 thereby declaring its income as 'NIL'. Notices under section 143(2) and Section 142(1) along with a questionnaire were also issued, in response to which detailed submissions were filed by the assessee. Meanwhile, the assessee, feeling aggrieved with the findings of the Revenue Intelligence, filed a petition before the Custom and Central Excise Settlement Commission (CandCESC) (hereinafter referred to as the Settlement Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd whether t5hey have cooperated with the proceedings to determine the correct additional duty liability, if any, when they have limited themselves to plead that the Revenue has not substantiated their charges of over invoicing of their exports. The Bench would like to recall its observations in para 10.5 above that all the indications appear to support the allegations of over valuations of exports, though the Revenue has not been able to substantiate it with evidence. Accordingly, in the subject proceedings of settlement, where immunities depends upon full and true duty disclosure and not on the applicant merely being able to prove that no case has been made out in the SSN, the Bench holds that the in applicant may not qualify for total fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the next 15 days from the date of receipt of the communication from Revenue and report compliance to the Revenue and the Bench. (3) The Bench imposes of a penalty of Rs. Rs.10,00,000/- on M/s PPL and Rs.5,00,000/- on Shri Vivek nagpal, its Managing Director and grant immunities in excess of the same to the above two applicants and total immunity from penalty on the other co applicants, under the provisions of Customs Act, 1962. (4) Immunity is granted from confiscation and consequent fine under the provisions of Customs Act, 1962. 12.0. The above immunities are granted under sub Section (1) of Sec 127H of the Customs Act 1962. Attention of the applicants is drawn to the provisions of sub Section (2) and (3) of section 127 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablishing that the Revenue has not substantiated their charge of over valuation." 7. On the basis of the conclusions, as mentioned above, the CIT(A) vide its order dated 26.03.2009 extirpated the addition of Rs. 38,12,25,856/- made by the AO in the assessment order passed under section 147. The operative portion of the CIT(A)S order is as under:- "In view of the aforesaid categorical findings of CandCESC in its order dated 31.05.2005, it is evident that there is no justification to draw any adverse inference against the assessee regarding the export sale proceeds of Rs. 40,47,38,019/-. The Assessing Officer has drawn the adverse inference solely on the basis of show cause notice and in my considered opinion the conclusions drawn by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of hearing on 7.12.2010 the Ld. Counsel for the appellant-Revenue could not verify the same as he had not received any instruction from the Department. In view of this, one week time was further granted with the condition that if the instructions are not received even on the next date, this court shall presume that the Department has accepted the order of the Settlement Commission. A substantial time has passed since the passing of that order but no reply has been filed by the Revenue on this issue. We construe this silence on the part of the Revenue as confirmation of the acceptance of the order of the Settlement Commission as it seems that the Department is unwilling to proceed with the matter. 10. In view of the above, we are of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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