Commissioner of Central Excise vs Customs and C. Ex. Sett. Commission

Adarsh Kumar Goel, J.—This petition seeks quashing of order dated 28-12-2007, Annexure P.4 passed by the Customs and Central

Excise Settlement Commission under the provisions of Central Excise Act, 1944 (for short, ''the 1944 Act'').

Respondent No. 2 assessee is manufacturer of Snuff under Chapter 24 of the First Schedule to the Central Excise Tariff Act, 1985 (for short,

''the 1985 Act''). Search was carried out in its premises and its partners on 19-4-2006. Search was also carried out in the godown of the sister

concern of the assessee, respondent No. 6. Stocks cleared clandestinely were found. Investigation was initiated during which the assessee

deposited amount of Rs. 40 lacs, while according to the department, the duty due was Rs. 1,5332,607/-. Show Cause Notice was issued

demanding the above amount of duty and proposing confiscation of seized goods and levy of penalty. The assessee moved application before the

Settlement Commissioner u/s 32E of the 1944 Act. The Settlement Commission after considering the rival claims of the parties, passed an order

u/s 32F(5) of the 1944 Act directing the assessee to pay amount of Rs. 31,88,629/- towards duty with interest, redemption fine and penalty but

granted immunity from prosecution and waived part of interest, redemption fine and penalty. It was further held that the revenue was entitled to

return the amount of Rs. 35,38,521/- being the value of goods which were seized after deducting redemption fine in respect of the said goods.

The revenue has filed this petition on the ground that the Settlement Commission could not assess the value of goods.

We have heard learned Counsel for the parties and perused the record.

Only question which has been raised by learned Counsel for the petitioner is that the Settlement Commission had no jurisdiction to return the

amount equal to value of goods which were seized. As per order dated 23-11-2006 in CWP No. 16111 of 2006 [2007 (218) E.L.T. 325 (P &

H)] filed by the assessee, this Court directed adjudication by the department and adjustment of value of goods as per order of adjudicating

authority. Since no adjudication took place, the Settlement Commission could not direct return of value of goods.

Learned Counsel for the assessee submits that adjudicating authority having not made any adjudication, the goods having neither been

confiscated nor returned, the Settlement Commission was justified in giving effect to order of this Court by directing return of value of goods which

was incidental to its main order.

In view of undisputed facts that the goods of the assessee were seized and were neither confiscated nor returned, there is no illegality in the

order of the Settlement Commission in directing return of value of goods, while determining liability of the assessee. Learned Counsel for the

revenue has not been able to show any bar to this course being adopted by the Commission. Such power was clearly available with the

Commission u/s 32F(5) read with Section 32-I of the Act.

There is, thus, no ground to interfere with the view taken by the settlement Commission.

The petition is dismissed.