Page 279 - ELT_15th July 2020_Vol 373_Part 2

2020 ] A.V. AGRO PRODUCTS LTD. v. COMMR. OF CUS., C. EX. & CGST, NEW DELHI 261

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 deci-
sion of the Supreme Court in case of CC v. Sayed Ali - 2011 (265)
E.L.T. 17 (S.C.) which was subsequently followed by this Tribunal in
the case of Teracom Ltd. v. CCE [2016 (339) E.L.T. 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 authori-
ty under the KVSS, the co-noticees do not even have to make an ap-
plication and the case of every co-noticee stands automatically
closed as held by the Supreme Court in Union of India v. Omkar S.
Kanwar, 2002 (145) E.L.T. 266 (S.C.) and further emphasised by the
Delhi High Court in Lesag HBB (I) Ltd. & Others v. CC, 2017 (346)
E.L.T. 549 decided on 3-11-2016 in W.P. (C) No. 4819/1999 which
are binding.
(iii) While submitting on merits it is mentioned that there are no state-
ments given by three of the appellants and they have been proceed-
ed against only on the basis of alleged statements of driv-
er/transporter of the CPO that too were taken under coercion. It is
further submitted that owner of Pioneer Soap & Chemicals had not
stated that he had supplied quoted goods to the appellant nor there
is any other evidence on record. These witnesses were prayed to be
cross-examined but the request of the appellant was not considered.
It is submitted that failure to grant cross-examination to the appel-
lants has resulted in denial of natural justice to the appellants and
the alleged statements of the driver/transporter/the proprietor of
the main notice cannot be relied upon to draw the adverse inference
against the appellant. Above all, there is no compliance of Section
9D of the Central Excise Act and Section 138B of the Customs Act.
Following case laws has been relied upon :
(a) Jindal Drugs Pvt. Ltd. v. Union of India, 2016 (340) E.L.T. 67 (P
& H);
(b) Arya Abhushan Bhandar v. Union of India, 2002 (143) E.L.T. 25
(S.C.);
(c) CCE v. Parmarth Iron Pvt. Ltd., 2010 (260) E.L.T. 514 (All.);
(d) Swadeshi Polytex Ltd. v. Collector, 2000 (122) E.L.T. 641 (S.C.);
(e) J. & K. Cigarette Ltd. v. Collector, 2009 (242) E.L.T. 189 (Del.).
(iv) The Learned Counsel has further justified the stand on merits by
submitting that the appellant have not in any manner dealt with al-
leged offending goods nor had done anything as importer or ex-
porter or buyer or seller of offending goods so as to attract Section
112B of the Customs Act. The decision in the case of Him Logistics
Pvt. Ltd. v. Principal Commissioner - 2016 (336) E.L.T. 15 (Del.) of this
Tribunal has been impressed upon. With these submissions the or-
der under challenge is alleged to have ignored the submissions and
the fact that there is no evidence to proceed against the appellants.
Order is accordingly prayed to be set aside and appeals are prayed
to be allowed.
EXCISE LAW TIMES  15th July 2020  279