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TMI Blog2018 (7) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of providing hydraulic cranes on hire basis for construction activities to various clients such as M/s.Larsen and Toubro, M/s.HCC, M/s.Michigan Engineering etc. 5 The petitioner were served with show-cause notice dated 19th October, 2013 demanding service tax amounting to Rs. 1,88,23,722/-, for the period of 2008-09 to 2012-13, alongwith interest, proposing to appropriate 1,03,88,821/-, already paid by the petitioner and proposing imposition of penalty for alleged willful suppression of material facts. 6 According to the petitioner, the amount stood paid and ST-3 returns were filed even prior to the issuance of showcause notice, and the fact that CENVAT Credit is available to the petitioner which was already verified by the department in the show-cause notice. However, the Adjudicating Authority was not inclined to accept the said submission and hence the petitioner sought to take recourse to the option of settlement before the Settlement Commission. 7 The petitioner filed an application before the Settlement Commission under the provisions of Section 32E of the Central Excise Act, 1944, on 21st March, 2017. The calculation sheets as well as copies of challans evidencing paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without providing an opportunity to the petitioner to submit any documents. Whereas, all the discrepancies mentioned in the Report were adequately explained. It is contended that despite the submissions of the petitioner, respondent no.2 relied upon erroneous Report of the Jurisdictional Revenue Authorities and rejected the Settlement Application vide order dated 21st August, 2017, on the ground that the same is not maintainable. 9 Mr.Prakash Shah, learned counsel for the petitioner assailed the impugned order on several grounds and submitted that the order suffers from vice of non-application of mind. He submits that respondent no.2 has committed an error in holding that the petitioner has not submitted documents, as directed. It is submitted that letter dated 25th May, 2017, which was purportedly issued to the petitioner was not received by them and, thereafter, a reminder was sent to the petitioner on 9th July, 2017. They were directed to submit the documents referred to in the letter dated 25th May, 2017. The petitioner forwarded their response on 12th June, 2017. The Jurisdictional Authority, issued letter dated 14th June, 2017, seeking all documents mentioned therein within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of CENVAT Register. However, the availment and utilization of the said CENVAT Credit has been made by the petitioner in ST-3 Returns filed by them subsequently. Mr.Jetly, further submitted that the Bench has considered the application, relevant records and submissions advanced while rejecting the application for settlement. In the records and proceedings dated 19th May, 2017, the petitioner was specifically directed to submit all the documents of service tax payment on the basis of which CENVAT Credit is claimed and relevant records regarding availment and debit of the said CENVAT Credit to the Jurisdictional Revenue Authority for verification. It was obligatory on the part of the petitioner to submit records and excuses were made vide letter dated 30th June, 2017. In this case, neither ST-3 Returns were filed at the relevant time nor the petitioner provided the CENVAT Credit Register evidencing the CENVAT Credit. They did not produce original invoice before the Revenue Authority despite directions from the Bench. It is, thus, submitted that no fault can be noted in the impugned order since the Settlement Commission has taken into consideration facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order indicates that specific direction was given to the petitioner to produce original record for verification, but, he has only supplied copies. The record of proceedings of hearing dated 19th May, 2017, does not indicate that there was any such direction to the petitioner. The petitioner contends that as per show-cause notice, all CENVAT details were available with the officers of the Department, even before the issuance of show-cause notice. There was no specific direction to produce specified documents. The petitioner's case is that show-cause notice specifically mentions that CENVAT Credits available to the petitioner were verified during the investigation and the petitioner has availed CENVAT Credit on the said basis, which fact is brought up in reply dated 30th June, 2017. The petitioner has submitted that even though all documents, as required, was provided barring CENVAT Credit Register, the request for which was only brought to the attention of the petitioner by letter dated 14th June, 2017, received on 16th June, 2017. Respondent no.2 has recorded an adverse finding that no documents, as required were submitted by the petitioner and whereas, it is their case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout giving sufficient opportunity to the petitioner. In the decision of this Court in the case of Poona Tools Pvt. Ltd. (Supra) relied upon by the petitioner the order of the Settlement Commission was challenged on the ground that it is in violation of principles of natural justice. It was contended that the procedure contemplated under Section 32E and 32F of the Central Excise Act was scrupulously followed and on being satisfied that the petitioner therein have fulfilled all the norms prescribed for settlement, the application was directed to be proceeded with and the said decision cannot be reviewed. In the facts of that case, this Court set aside the order of settlement Commission and remanded the matter for reconsideration by the Commission. In the present case, respondent no.2 proceeded on interim report of revenue and before receipt of final report, the impugned order was passed. In pursuant to order dated 13th April, 2017, passed by Settlement Commission allowing application under Section 32E to be proceeded with, it was expected that respondent no.2 would look into all material aspects by giving sufficient opportunity to assessee to establish his claim in the application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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