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TMI Blog2017 (12) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the petitioner failed to provide the required cooperation to the Settlement Commission to settle the case in a true spirit of settlement. The facts recorded by the Settlement Commission in paragraph 7.4 shows the conduct of the petitioner. It appears that the authorized representative, who was engaged by the petitioner, did not extend full cooperation. That apart, there has been change of the authorized representative. There is every justification on the part of the Settlement Commission for having refused to entertain the application. However, one more reason assigned by the Commission in Paragraph 7.8 of the impugned order is that the petitioner failed to make full and true disclosure in the application for settlement. However, this conclusion is not supported by adequate findings. Thus, it can be safely concluded that the application was rejected for non-cooperation. In such circumstances, it cannot be stated that the revenue would be prejudiced or put to difficulty for appearing before the Settlement Commission at Chennai, especially when the respondents admit that the Chennai Bench of the Settlement Commission exercises jurisdiction over the State of Andhra Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating authority for adjudication in accordance with the provisions of the Customs Act. The correctness of this order is challenged before this Court. The reason for sending back the case to the adjudicating authority is on the ground that the petitioner has not made true and full disclosure of the duty liability and have failed to provide cooperation to the Settlement Commission to settle the case in a true spirit of settlement. Though the Settlement Commission stated that there is no true and full disclosure of the petitioner s duty liability, I find that there is no specific reasons assigned by the Settlement Commission, as to why, it came to the conclusion that there was no true and full disclosure. However, with regard to lack of cooperation, the Settlement Commission in paragraphs 7.4 and 7.5 has recorded its finding. 4.Mr.A.R.L.Sundaresan, learned Senior Counsel representing Mr.S.Senthil Nathan, learned counsel for the petitioner submitted that the petitioner is not canvassing the matter on merits and all that the petitioner pleads is to give one more opportunity to him to go before the Settlement Commission and contest the matter on merits. 5.Mrs.Hema Muralikrishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be maintainable, should the petitioner be given an opportunity once again before the Settlement Commission. 9.The Learned Senior Counsel referred to the Full Bench decision of this Court in the case of Sanjos Jewellers v. Syndicate Bank referred in (2007) 5 CTC 305 and submitted that in the said case, the original authority viz., the Bank was situated in Hyderabad, the appellate authority was situated in Chennai, and the order of the appellate authority was challenged before this Court and after referring to other decisions of the Hon ble Supreme Court including the decision relied on by the revenue viz., Kusum Ingots (supra), held that the petitioner is entitled to challenge the order passed by the Debt Recovery Tribunal has merged with the order passed by the Debt Recovery Appellate Tribunal situated in Chennai, which gives a cause of action to file the writ petition before this Court. 10.Learned Senior Counsel further referred to the following decisions to substantiate his contention that the writ petition is maintainable before this Court: (i) Union of India vs. Adani Exports Ltd., reported in (2002) 9 SCC 567 and (ii) M/s.Ambica Industries vs. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has no territorial jurisdiction to entertain and try the writ petition, since the order was passed by the Settlement Commission, Mumbai. It was pointed out that the order passed by the adjudicating authority did not merge into the order of the Settlement Commission and the order of the Settlement Commission can neither be said to be an order in appeal or revision and it is altogether a different special forum created under the Customs Act for settlement of disputes. The question before the Court was whether the Court lacks jurisdiction to entertain the writ petition. It was held that the Court certainly has jurisdiction and the real question is whether the Court should entertain the petition only because a small part of cause of action arises within the jurisdiction of the Court. Thus, the question framed for consideration was whether the Court (Bombay High Court) should decline to entertain the writ petition considering the doctrine of Forum Conveniens when the substantial and intrinsic cause of action arisen within the jurisdiction of the Madras High Court. After noticing the decision of the judgment in Kusum Ingots (supra), it was held that it is for the High Court to decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut earlier, the petitioner has filed the writ petition for issuance of writ of certiorari, to call for the records on the file of the first respondent, Settlement Commission and to quash the same and to re-consider the application afresh. By issuance of rule NISI, the Court would call for all the records from the concerned authority or Tribunal and the authority/Tribunal is to forward all the records for consideration of this Court. Thus, when a rule is issued by this Court in this Writ petition, the Settlement Commission has to place all the records in original before this Court for being decided as to its correctness and validity. By efflux of time and owing to various other factors, the Court as a matter of practice while issuing rule under Article 226 of Constitution of India does not retain the records, but would direct production of the same as and when required. 22.As rightly pointed out by the Learned Senior Standing Counsel for the respondents, the order passed by the Settlement Commission is not an order in appeal or an order in revision. Therefore, the question of the said order merging with the order passed by the second respondent does not arise. This is more so in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culty for appearing before the Settlement Commission at Chennai, especially when the respondents admit that the Chennai Bench of the Settlement Commission exercises jurisdiction over the State of Andhra Pradesh. That apart, after the application was entertained, the second respondent has filed a report before the Settlement Commission. Thus, all required facts were available before the Settlement Commission for being considered. Therefore, considering the hard facts and going by the settled legal principle that on account of the fault commited by a counsel or an authorized representative or that matter a Court or a Tribunal, a party or a litigant should not suffer, this Court is inclined to exercise its discretion in entertaining these writ petitions challening the order passed by the Settlement Commission. 25.The learned Senior Counsel has given an undertaking before this Court that the petitioner assures that he will extend fullest cooperation before the Settlement Commission and the Court may also fix a time limit for the Commission to complete the proceedings and also impose strict timelines on the petitioner. The Settlement Commission has been holding regular sittings and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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