Page 280 - ELT_15th July 2020_Vol 373_Part 2

262 EXCISE LAW TIMES [ Vol. 373

4. While rebutting the respective arguments the Department has sub-
mitted as follows :
(i) As far 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 Cus-
toms (Import of Goods at Concessional Rate of Duty for Manufac-
ture of Excisable Goods) Rules, 1996, Assistant Commissioner hav-
ing jurisdiction over the factory shall have jurisdiction to issue no-
tice 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.
v. Collector of Central Excise reported in 2000 (126) E.L.T. 1256 (Tri-
bunal) has been impressed upon with the mention that the said
judgment has been upheld by the Hon’ble Supreme Court of India
vide its judgment in the case of Samtel Colour Ltd. v. Collector - 2006
(196) E.L.T. A145 (S.C.). The said decision has subsequently been re-
affirmed in the case of Cosmo Ferrites Ltd. v. Commissioner of Central
Excise reported in 2015 (318) E.L.T. A157 (S.C.).
(ii) The proceedings against the co-noticees who do not prefer any ap-
plication before Hon’ble Settlement Commission cannot come to a
suo motu hault. The immunity which got available to the applicant
before Settlement Commission including the main noticee cannot be
extended to the appellants herein. The Learned DR has relied upon
the decision in the case of Mamta Garg v. CCE, Noida, 2018 (359)
E.L.T. 77 (Tri. - Del.) and on another decision in the case of Shree
Naklank Ltd. v. CESTAT, Ahmedabad - 2019 (365) E.L.T. 407 (Guj.). It
is impressed upon that the appellant has been banking upon this
sole argument of automatic immunity in their favour due to the de-
cision of Settlement Commission in favour of main noticee and sev-
en other co-noticees. Despite that the Settlement Commission, itself
has given liberty to the Department to proceed against the remain-
ing co-noticees.
(iii) The allegation of no opportunity of being heard, as raised by the
appellants and that the denial of cross-examination of the witness is
denied to be the violative of principles of natural justice, as is al-
leged. It is submitted that many opportunities of hearing were given
to the appellants. They were duly informed about the impugned ev-
idence documentary as well as oral as obtained against them but
they did not opt to avail the said opportunity. The argument of any
such opportunity being denied is therefore not sustainable. With re-
spect to the grievance about any opportunity not being given for
cross-examination, the decision in the case of Silicone Concepts Inter-
national Pvt. Ltd. v. Principal Commissioner, ICD, TKD, New Delhi vide
Final Order No. 50963/2019-CESTAT, New Delhi [2019 (368) E.L.T.
710 (Tribunal)] has been relied upon. With respect to the scope of
Section 9D it is submitted that it has already been settled that con-
fessional statements are out of the ambit of Section 9D. Otherwise
also when noticee’s statement amounts to confessions, he cannot be
compelled to be cross-examined and thus no violation of principle
of natural justice can be alleged. It is submitted by the Department
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