Page 282 - ELT_15th July 2020_Vol 373_Part 2

264 EXCISE LAW TIMES [ Vol. 373

Noticees the appellants cannot be entitled for the blanket immunity. Otherwise
also the immunity from prosecution has not been granted even to Mr. Lalit Goy-
al, the Proprietor of main Noticee M/s. Pioneer Soap and Chemicals. The penalty
has simultaneously been imposed upon the remaining Noticees/applicants of
Section 127B of Customs Act. In addition, the Settlement Commissioner has
granted liberty to the Revenue to take the appropriate action against the remain-
ing Noticees i.e. the appellants herein. Hence, the benefit of KVS Scheme cannot
suo
motu be extended to the appellants. I draw my support from the decision of
Hon’ble High Court of Gujarat in the case of Shri Naklank Ltd. (supra). It was held
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 on-
ly in relation to assessee, who applied for the settlement. There is no warrant un-
der the statutory provision that upon one assessee applying for settlement, such
settlement being granted and terms of settlement being fulfilled. Any other as-
sessee 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 valorem has misused the ex-
emption 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 manufac-
turing soap. This allegation clarifies that the verification of the compliance of the
impugned notification involves customs as well as the excise, as it is the case of
import as well as diversion of the imported goods in the local market. Samtel Col-
our Ltd. (supra) has already clarified the impugned situation by holding that im-
ported goods or not use as per certificate of registration under Rule 3(2) of Cus-
toms (Import of Goods at Concessional Rate of Duty for Manufacture of Excisa-
ble Goods) Rules, 1996, Assistant Commissioner having jurisdiction over his fac-
tory shall have jurisdiction to issue notice for recovery of differential duty and
the Assistant Commissioner of Customs at port of importation shall have no role
at the import stage. In the present case also under Rule 3 of Customs Rule, the
importer intending to avail Cenvat Credit Rule and duty was required to have
acquired registration from Assistant Commissioner/Deputy Commissioner,
Central Excise having jurisdiction over his factory. All details indicated the quan-
tity of goods to be imported the applicable notification the port of importation
and giving an undertaking have to be furnished along with application before
the Assistant Commissioner/Deputy Commissioner of [Central] Excise only as is
required under Rule 4 of Customs Rules. It is thereafter that the Assistant Com-
missioner or Deputy Commissioner of Customs can allow the benefit of exemp-
tion notification on the basis of the Certificate to be given by Assistant Commis-
sioner/Deputy Commissioner of [Central] Excise as stand clarified from Rule 5
of Customs Rules. Rule 7 thereof in addition require the importer to maintain the
simple account of imported goods and consumption thereof for the information
purpose for use as and when required by the officer of Central Excise. These
Rules makes it abundantly clear that Commissioner of Central Excise is a compe-
tent officer to issue invoices.
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