DEBANGSU BASAK,J. - (1.) An order passed by the Customs and Central Excise Settlement Commission dated February 12, 2008 is under challenge in the present writ petition.
(2.) Learned advocate appearing for the petitioners submits that, the first petitioner is a hundred per cent export oriented unit. It is carrying on business from outside the special economic zone. It is entitled to sell certain percentage of its exports in the domestic market. In the relevant financial year, the first petitioner had done so. A proceeding under the Customs Act, 1962 was initiated against the first petitioner on the ostensible ground that the first petitioner did not have a pre-existing permission for sale in the domestic market. The first petitioner had replied to the show cause notice taking a particular stand. The first petitioner had, thereafter, approached the Settlement Commission on the basis of such stand. Learned advocate for the petitioners submits that, the stand taken by the first petitioner in the reply to the show cause notice and its approach to the Settlement Commission are erroneous appreciation of law. He submits that, the first petitioner is entitled to 100% exemption for the domestic sale and that, the two notifications which the Customs Authorities seek to rely upon for the purpose of fastening liability on the first petitioner for domestic sale has no manner of application. He submits that, the two circulars were interpreted in a similar factual scenario by different Courts and that the Courts have held in favour of the assessee. The Settlement Commission has failed to take notice of the settled position of law and had, therefore, arrived at a wrong conclusion. He submits that an opportunity be afforded to the first petitioner to re-agitate its claim before the Settlement Commission, in view of the settled position of law. That would necessarily mean the first petitioner should be allowed to recompute and to proceed afresh thereon. Learned advocate for the petitioners in support of its contention that, the first petitioner is not liable as held by the Settlement Commission relies upon 2002 (143) E.L.T. 521 (Del.) (Plastic Processors v. Union of India) and 2013 (290) E.L.T. 514 (H.P.) (Satya Metals v. Union of India).
(3.) Learned advocate for the department submits that, the first petitioner is liable in view of the two notifications referred to in the show cause notice. He submits that, the factual scenario in the authorities cited by the petitioners, are different to that obtaining in the present case. Therefore according to him, the ratio laid down therein, are not applicable to the facts of the present case.;