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TMI Blog2015 (10) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... -operated with the Settlement Commission in the proceedings before it. This power given to the Settlement Commission under Section 32-L does not and cannot take away the powers conferred on the Settlement Commission under sub-section (5) and (8) of Section 32-F. The specific instances of clandestine removal of goods, discrepancies of value recorded in the invoices and those recorded in the private record against the same invoice numbers and use of parallel invoices as alleged in the show cause notice, were not explained. The Settlement Commission also found that the stand taken by the applicant and the Department are at huge variance inasmuch as the petitioners merely accepted 10% of the demand and has contested the evidence collected by the Revenue without any convincing explanation. - Order of Settlement Commission sustained - decided against the assessee. - Writ Tax No. - 538 of 2015 - - - Dated:- 30-9-2015 - Hon'ble Tarun Agarwala And Hon'ble Surya Prakash Kesarwani, JJ. For the Petitioner : Pankaj Bhatia,Amit Awasthi, Gopal Verma For the Respondent : A. S. G. I. ,Ashok Singh, Sr. S. C. ,C. B. Singh ORDER ( Per: Surya Prakash Kesarwani,J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also carried on in which excess stock of finished goods i.e. laminated sheeting, flooring, tiles, met of certain varieties valued at ₹ 1,13,97,502/- involving Central Excise duty of ₹ 14,08,731 was found. The shortage of finished goods of CPO, DBP, NPPX etc. valued at 38,26,266/- involving Central Excise duty of ₹ 4,72,925/- was found. Certain raw materials were also found in excess during the search. Two private ledgers and two writing pads (kachcha records) were recovered from the briefcase found in the official cabin of Sri S.G. Gupta, Executive Director of the petitioner which were resumed. On scrutiny of these ledgers and writing pads, it was revealed that it contained entries of transactions related to clandestine removal of finished goods. On the basis of preliminary scrutiny of resumed records, follow up searches were conducted at 11 different places in which certain records, computer, hard disc and a computer were resumed from the factory situated at Sikandrabad and office premises of the petitioners at Ghaziabad and New Delhi. During investigation, the statements of various persons including Sri S.G. Gupta, Executive Director, were recorded under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also noticed that statutory invoices were issued in the name of non existing buyers. The specific instances of clandestine removal of goods, discrepancies of value recorded in the invoices and those recorded in the private record against the same invoice numbers and use of parallel invoices as alleged in the show cause notice, were not explained. The Settlement Commission also found that the stand taken by the applicant and the Department are at huge variance inasmuch as the petitioners merely accepted 10% of the demand and has contested the evidence collected by the Revenue without any convincing explanation. The Settlement Commission also referred the uncontroverted statement of Sri S.G. Gupta, dated 18.3.2013 under Section 14 of the Act with respect to question Nos. 9,10 and 11. 10. After considering the application in detail, the Settlement Commission held in paras 32 to 37, 43 and 44 as under: 32. The Bench has gone through the application filed and considered the rival submissions made orally as well as in writing both by the applicant and the Revenue. The Bench observes that this is a case of alleged clandestine clearance, under valuation, shortage of finished good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss cannot be on account of line rejection as claimed. Line rejections would normally occur only in one day or two production periods. This gives the impression that there was clandestine clearance of goods which were not entered in the statutory records. The applicant did not object to the accuracy of the stock taking at the time of search, hence the present objections appear to be an afterthough. The applicant has argued about the decreasing quantum of electricity used by them. Since this argument is offered in defence it is for the applicant to substantiate his case. However, the applicant apart from making this statement has not offered any cogent reason to support his case. The applicant has not offered any explanation of the unaccounted for cheques, not shown in the bank statements. Further, out of the 6 buyers whose statements were obtained by the Revenue, several stated that they were purchasing goods from the applicant, and records of such sales, in crores, were found in the kuccha records, but either no invoice in their names was found in the statutory records, or the statutory invoices showed a smaller value and were in other names. Statutory invoices were issued in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Wire Product P Ltd., Vs. Dir. General of Central Excise Intelligence reported at 2014(307) E.L.T. 438(All) and also by the Hon'ble Madras High Court in the case of Australian Foods Ltd. Vs. Commission of Central Excise, Chennai II reported in 2012 (254) ELT 392(Mad.). 43. In view of the foregoing discussions, the Bench observes that the applicant has not only not accepted a substantial part of the demand but has contested the evidence collected by the Revenue after the issue of the SCN. They have claimed certain facts which need further investigation. Therefore the Bench observes that the case is not one that can be settled in this forum. In view of the complex issues of fact raised by the rival parties to the case, it would be more appropriate that the case is adjudicated by the proper Officer after appreciation of facts and evidence now produced before the Commission by the applicant. 44 The Bench, by virtue of the powers vested in it in terms of Section 32L(1) of the Central Excise Act, 1944, sends the case back to the Adjudicating authority for adjudication in accordance with the provisions of the law. The adjudicating authority will decide the case as if no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. This power given to the Settlement Commission under Section 32-L does not and cannot take away the powers conferred on the Settlement Commission under sub-section (5) and (8) of Section 32-F. After interpreting the provisions, the Division Bench in Vinay Wire and Poly Product P.Ltd. (supra) held in para 17 as under: This submission cannot also be accepted. The Settlement Commission has given good and cogent reasons for sending the case back to the adjudicating authority. The Settlement Commission noticed that the applicants had not accepted a substantial part of the duty liability and had in fact contested the evidence collected by the Revenue as being fabricated and tampered with. It also noticed that the Revenue had given reasons to substantiate its position regarding the investigation as well as the quantification of duty liability. In such a situation, the Settlement Commission thought it appropriate, particularly when the applicants had not made a full and true disclosure and that complex questions of fact, which required appreciation of evidence, were required to be settled through adjudication. A fair amount of discretion has to be given to the Settlement Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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