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TMI Blog2020 (3) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... is as follows: That the appellant herein is involved in import of Crude Palm Oil (hereinafter called as CPO) at concessional rate of Customs Duty while availing the benefit of Sl. No. 30 of Notification no. 21/2002-Cus dated 1.3.2002 as amended by notification no. 20/2004-Cus dated 16.1.2004. The said notification extends the concessional rate of customs duty of 20% ad valorem provided the imported CPO is meant for use in manufacture of soap. The Department, however, gathered an intelligence that M/s. Pioneer Soap and Chemicals are misusing the exemption extended vide the said notification by violating the condition thereof as they are diverting the CPO to the open market instead of using the same for the given purpose. During investigation, Department observed that the appellant obtained the Central Excise Registration on 28.12.2004 and thereafter under six BOEs imported 1371.878 MTs of CPO from January 2005 to August 2005 against concessional rate of duty of 20% ad valorem availing thereby total exemption of customs duty of Rs. 1,27,72,140/-. However, the said imported CPO was never used by them for manufacturing soaps as was prescribed under the said notification but was sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, Shri Harjinder Singh and Lokpriya Traders and closed the case. Therefore, the question of the Commissioner of Excise in Delhi conducting parallel or other proceedings in regard to the same case which is already settled by the Settlement Commision does not arise as he has no jurisdiction whatsoever against A.V. Agro Products in Kanpur and Genex Foods Pvt. Ltd. in Ghaziabad and Shri Rohit Agarwal, Director of Genex Foods Pvt. Ltd. in Ghaziabad. The excise Commissioner Delhi is denied to be proper officer in terms of Section 2(34) of Customs Act and as such is denied to have any jurisdiction to issue the show cause notice. The impugned show cause notice is therefore prayed to be barred by jurisdiction. Learned counsel has laid emphasis upon the decision of the Supreme Court in case of CC Vs. Sayed Ali 2011 (265) ELT 17 (SC) which was subsequently followed by this Tribunal in the case of Teracom Ltd. Vs. CCE (2016) 339 ELT 272 (Del). ii. The law is well settled that when once the case of the main assessee is settled by the Settlement Commission or other competent authority under the KVSS, the co-noticees do not even have to make an application and the case of every co-noticee st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as jurisdiction of Excise Commissioner as has been objected, learned DR has submitted that when imported goods are not used as per the Certificate of Registration given under Rule 3(2) of Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules 1996, Assistant Commissioner having jurisdiction over the factory shall have jurisdiction to issue notice for recovery of differential duty under Rule 8 ibid and not the Assistant Commissioner of Customs at the port of importers under Rule 5 ibid. Decision of this Tribunal in the case of Samtel Colour Ltd. Vs. Collector of Central Excise reported in 2000 (126) ELT 1256 (Tri) has been impressed upon with the mention that the said judgment has been upheld by the Hon'ble Supreme Court of India vide its judgement in the case of Samtel Colour Ltd. Vs. Collector 2006 (196) ELT A 145 (SC). The said decision has subsequently been reaffirmed in the case of Cosmo Ferrites Ltd. Vs. Commissioner of Central Excise reported in 2015 (318) ELT A157 (SC). ii. The proceedings against the co-noticees who do not prefer any application before Hon'ble Settlement Commission cannot come to a suo moto hault. The immunity wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire records my opinion to the respective arguments is as follows: A. Immunity to the appellants due to the order of Settlement Commissioner in favour of the main noticee: Show cause notice bearing No.15.10.50 1062 dated 24th April , 2007 was issued to 13 Noticees alleging the misuse of the exemption extended vide Sl. No.30 of Notification No.21/2002-CU by importing the crude palm oil at concessional rate at Customs duty and diverting the same to open market instead of using the same for the given purpose. The main beneficiary was the first applicant M/s. Pioneer Soap & Chemicals. No doubt vide order dated 24.02.2009 the application of Noticee. Sl.No.1,6,5,8,10 & 13 of the show cause notice under Section 127 B of the Customs Act, 1962 was disposed of thereby imposing penalty upon 6 of the said applicants to the extent as mentioned in the said order. The argument put forth by the Revenue with respect to para 14 of the said order is perused as correct. A perusal of that order dated 24th February, 2009 shows that penalty was imposed upon six of the applicants and the Settlement Commission has given liberty to the Revenue to take action as deemed fit in respect of the other co-Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is the assessee who applies for settlement alone whose application would be considered and either granted or rejected in the terms of settlement, fulfilment of such terms by the applicant and the resultant grant of immunity would be only in relation to assessee, who applied for the settlement. There is no warrant under the statutory provision that upon one assessee applying for settlement, such settlement being granted and terms of settlement being fulfilled. Any other assessee even if he hopes to be co-noticee can avoid further adjudication of this case. It was clarified that Department can still proceed against co noticee who was facing only notice on penalty. B. Jurisdiction of Central Commissioner: The basic allegation of the Department is that the importer of crude palm oil at concessional rate of customs duty of 20% ad velorum has misused the exemption extended vide Sl. No. 30 of notification no. 20/2004-Cus as amended vide 20/2004-cus dated 16.1.2004 by diverting the same to open market instead of using the same for the purpose mentioned in the notification i.e. for manufacturing soap. This allegation clarifies that the verification of the compliance of the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were 13 noticees in the present case and 7 noticee of them i.e. main noticee along with no. 5, 6, 8, 10, 12 & 13 have already applied to the settlement commission, penalty against noticee no. 7, 9 & 11 was already dropped observing them to be fictitious firms). M/s. Genex Consultant Pvt. Ltd. & Sh. Rohit Agarwal, Director thereof, were being duly heard by the Adjudicating authority below on 26.10.2009 and appellant M/s. A V Agro Products chose to put forth the defence vide their letter dated 20.10.2009. It is quite apparent from the order under challenge that despite ample effective opportunities of personal hearing being given, the appellants have not properly put forth their defence. They had rather adopted a strategy of seeking adjournments and therefore were noticed absolutely non cooperative by the adjudicating authority below. It is thereafter that the matter was decided based on the facts on record and the written reply received by the respective noticee. These observations are sufficient to hold that there is no denial of opportunity of being heard. The grievance of violation of principle of natural justice on this account is therefore not sustainable. As far as the plea o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill of some concern and mis-describing the CPO as "Rice Bran Oil" and GR of some other concern. The said employer used to travel in the tanker and facilitate the Sale Tax clearance at the UP Border; iii. On the basis of registration numbers of tankers used for transporting the CPO from the ports of importation and the date of arrival thereof reflected by the noticee no. 1 in their receipt register, copies of Forms ST31 issued by M/s. Genex Consultant Pvt. Ltd. were collected from the Sales Tax Authorities of Ghaziabad. A scrutiny of Forms ST-31 so collected and the Noticee's CPO receipt register. This evidence proves that the various tankers which arrived at the factory of noticee no. 1 at different dates during the relevant period had transported some or the other quantity of CPO under respective GRs and form ST 31 of M/s. Genex Foods. This receipts and ST 3 returns are corroborating the statement of Shr. Harjinder Singh of M/s. H.G. Oil Carries against 3 of the appeals. Despite this evidence, the Director of M/s. Genex Foods Pvt. Ltd., Sh. Rohit Agarwal (one of the appellant) opted to not to appear for rebutting the said evidence but to sent a simple letter alleging the show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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