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TMI Blog2016 (6) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... ending. However, the reply given by the petitioner is not a straight forward reply, but by stating that pertaining to the show cause notice, which is subject matter of settlement application, no appeal has been filed, is pending before the Appellate Authority or Tribunal or Court and this is the first time, the petitioner has filed the Settlement Application before the forum. The reply given obviously does not answer the specific query in a direct fashion. The letter dated 18.12.2014, given by the petitioner to the Commission makes it manifestly clear that the petitioner had no intention to co-operate with the disposal of the matter by the Commission. Therefore, the Commission after recording elaborate reasons held that the facts and circumstances clearly show lack of cooperation. There is no valid ground made out by the petitioner to interfere with such a finding. - order of the commission sustained - Decided against the petitioner. - W. P. Nos. 12794 & 12795 of 2015 - - - Dated:- 10-6-2016 - T. S. Sivagnanam, J. For the Petitioners : Mr. A. K. Jayaraj For the Respondents : Mr. A. P. Srinivas Senior Standing counsel ORDER Heard Mr.A.K.Jayaraj, learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal pertaining to the show cause notice against which the Settlement Application has been filed, is pending before any Appellate Authority or Tribunal or Court and this is the first time, the petitioner has approached the Settlement Commission. Based on such communication, the Commission by letter dated 10.04.2014, intimated the petitioner that the Hon'ble Bench has allowed the application to be proceeded with as per the amended provisions of Section 127C of Act. After about four months i.e., even before the matter could be proceeded with, a communication was sent to the counsel for the petitioner from the Commission, dated 28.08.2014, stating that the Commissioner of Customs by letter dated 24.07.2014, has brought to the notice of the Commission that CBI has registered a case against the petitioner and others and the matter has been taken cognizance by the Competent Court. Therefore, the Bench called upon the petitioner to offer specific comments on the maintainability of the application in terms of second proviso to Section 127B(1) of the Act. The petitioners sent a reply through their counsel dated 09.09.2014 that after filing of the Settlement Applications before the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Commissioner, since they had no notice of such a report and were aware of it, only when they perused the impugned order and found that in paragraph 6.5, the report submitted by the Revenue has been taken note of by the Commission. On the above grounds, the learned counsel submits that the matter may be remanded to the Commission for fresh consideration. 4. The learned Senior Standing counsel appearing for the respondent Department submitted that the Writ Petition is covered by the decision of this Court in the case of Nitish Tools Private Limited vs. Cus.,C.EX.S.T.SETT.Commission, Chennai reported in 2015 (325) ELT 35 (Mad), filed by one of the noticees namely, Nitish Tools Private Limited represented by its Managing Director Mrs.M.Thenmozhi, wife of Mr.C.Manoharan and the issue is identical except the fact that separate applications before the Commission, were filed and all arising out of the same show cause notice, dated 13.04.2013. In the said case also, the Commission passed similar order and sent back the matter to the Commissioner of Customs for adjudication by passing the order dated 29.12.2014 and the only difference being the change of cause title and the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complexity of the investigation involved, the Commission may allow the application to be proceeded with or rejected the application. Section 127E empowers the Commission to reopen the completed proceedings in appropriate cases, while Section 127F confers the powers upon the Commission which are vested in an officer of the Customs under the Act and in terms of Section 127H, the Commission can grant immunity from penalty and prosecution with or without condition, when it is satisfied that the applicant has made a full and true disclosure of his duty liability. In terms of Section 127I, the Settlement Commission can send back the matter to the proper officer, where it finds that the applicant is not co-operating with it. Thus, the scheme of the act gives wide discretionary powers to the Settlement Commission to examine a case, where there is full and true disclosure. That apart, the applicant's conduct in extending cooperation to proceed with the matter before the Commission has been given priority, as a separate Section namely Section 127I empowers the Commission to send back the matter to the proper officer, where it finds the applicant is not cooperating. Therefore, when a Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner was really interested in prosecuting the matter, he ought to have appeared before the Commission on the date so fixed. However, one day before the hearing, a letter of adjournment was circulated citing that the petitioner Mr.Manoharan is suffering from Spondylitis and therefore, adjournment should be granted. The Commission graciously accepted the prayer and granted more than one month time and fixed the hearing on 19.12.2014. Once again, the same modus was adopted by the petitioner and one day before the hearing sought for an adjournment and curiously enough in the letter requesting adjournment, the petitioner called upon the Commission to instruct the DRI to give copies of documents which were seized by DRI and until the same is received by them, the Commission should postpone the hearing. The letter dated 18.12.2014, given by the petitioner to the Commission makes it manifestly clear that the petitioner had no intention to co-operate with the disposal of the matter by the Commission. Therefore, the Commission after recording elaborate reasons held that the facts and circumstances clearly show lack of cooperation. There is no valid ground made out by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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