Gujarat High Court
Kevin Polymers Pvt Ltd, vs Customs, Excise And Service Tax ... on 22 February, 2018
Author: Akil Kureshi
Bench: Akil Kureshi, B.N. Karia
O/TAXAP/1042/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 1042 of 2017
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KEVIN POLYMERS PVT LTD,....Appellant(s)
Versus
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST
ZONEAL BENCH-AHMEDABAD & 1....Opponent(s)
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Appearance:
GARGI R VYAS, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 22/02/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Case of the appellant is that in case of excise evasion, the principal noticee has approached the Settlement Commission by making disclosures and depositing excise duty on such clearances. The Settlement Commission accepted the declaration and application for settlement and consequently granted immunity to the said noticee from penalty and prosecution. The appellant being a conoticee, in the nature of a subsidiary offender argued before the adjudicating authority and the Tribunal that in view Page 1 of 3 O/TAXAP/1042/2017 ORDER of the order passed by the Settlement Commission in case of principal noticee, benefit of immunity against penalty and prosecution should cover the present assessee also. The Tribunal rejected such a contention, upon which, the present appeal has been filed.
2. Learned counsel for the appellant submitted that different benches of the Tribunal have taken different views upon which the issue is referred to larger bench. Hearing before the larger bench is in progress. Counsel submitted that the very object of the settlement scheme is to refuse litigation. If the principal noticee offers full amount of duty by way of tax without contest, the Settlement Commission would in its discretion waive penalty and prosecution. In such a case, the duty having already been collected, the subsidiary actions of penalty on the conoticees should automatically get similar immunity. Counsel took us through the relevant provisions contained in the Central Excise Act, 1944, in this regard.
3. The appeal does give rise to an interesting question of law which we frame as under: Page 2 of 3
O/TAXAP/1042/2017 ORDER "In view of the fact that when in case of a manufacturer who was stated to have carry out clandestine removal of goods without payment of excise duty, the application for settlement was accepted by the Settlement Commission and was granted immunity from penalty and prosecution, the department can still proceed further against the present assessee who was facing only the notice for penalty ?"
4. Time permitted, we would prefer to hear the appeal at the admission stage itself. For such purpose, let there be NOTICE for final disposal returnable on 22.03.2018. We clarify that the larger bench of the Tribunal constituted for deciding this issue would continue the hearing as scheduled unmindful of this order of pendency of this appeal before High Court.
(AKIL KURESHI, J.) (B.N. KARIA, J.) ANKIT Page 3 of 3