Chawla Enterprises Ltd. vs Commissioner Of Customs And Ors.
2003 Latest Caselaw 480 Del

JUDGMENT

D.K. Jain, J.

1. Since the pleadings are complete and we have heard learned counsel for the parties at considerable length, we proceed to dispose of the writ petition at this stage itself.

2. Challenge in this writ petition is to the final order dated 7 August 2002 passed by the Customs and Central Excise Settlement Commission (for short the `Commission') under section 127C(7) of the Customs Act, 1962, (for short the 'Act').

3. The petitioner, a company incorporated under the Companies Act, 1956 is engaged in the manufacture of wall clocks, table clocks and quartz movements for clocks. For the manufacture of the said goods, falling under Chapter 91 of the Central Excise Tariff Act, 1985, the petitioner has been importing from time to time certain components/raw materials from various parties including one M/s.Wellgain Products Pvt. Ltd., Hong Kong. For the said imports Bills of Entry for home consumption were filed from time to time and the same were assessed under section 46 read with section 14(1) of the Act.

4. It appears that some investigations were undertaken against the petitioner by the Director General, Directorate of Revenue Intelligence, respondent No.4 herein. On 14 July 1997 summons under section 108 of the Act were issued to the Director of the petitioner-company requiring him to appear before the Sr. Intelligence Officer and produce Bills of Entry, Invoices, Bills of Lading, Airway Bills of imports from the said Wellgain Products with effect from 1 January 1997 along with Balance Sheets, Profit & Loss Accounts for the period 1994-95 to 1998-99. Pursuant thereto the Bills of Entry pertaining to the period 1 January 1999 and Balance Sheets etc. for the period 1994-95 to 1997-98 were produced. On 20 September 1997 the premises of the petitioner were searched by the officers of the Directorate of Revenue Intelligence (for short 'DRI'), which resulted in the seizure of certain records. During the course of investigations statements of the Joint Director of the petitioner were recorded. It is alleged that a sum of Rs. 1 crore towards duty/interest/penalty were deposited by the petitioner on 19 August 1999 and 27 August 1999 under coercion by respondent No.4

5. On 5 February 2001 an application under section 127B of the Act was filed on behalf of the petitioner with the Commission at Mumbai as the investigations were being carried out by respondent No.4, based at Mumbai. The application was in the prescribed form SC-1. For the purpose of ready reference, relevant portion of the application is reproduced below:

"5. Period/date of the cause/dispute in : 1-1-97 to 31-8-99 connection with which the application for settlement is made.

6. Details of Bill(s) of Entry filed in : As per Annexure-A relation to the case for Settlement.

7. Proceedings to which application for : (a) Search & Seizure settlement relates, the date from which operation conducted the proceedings are pending and authority by DRI, Mumbai & before whom the proceedings are pending. Delhi. (b) First summons on 7.10.97. (c) DRI/BZU, Hotel Waldorf, 3rd & 4th floor, 16, Arthur Bunder Rd, Colaba, Mumbai-400 005.

8. Where any appeal or application : No. for revision has been preferred after the expiry of the period specified for filing such appeal or application for revision, as the case may be, whether such appeal or revision has been admitted.

            9.                    Date of seizure, if any.    : 20.09.97 & 31.08.99 
           10.                   Brief facts of the case and particulars                  : As per Annexure A
                  of the issues to be settled..

           11.   Assessable value of goods as per B/E                   : Rs.10,88,76,755.62

          12.                   Total amount of duty involved in     : Show Cause Notice
                    the Dispute (As per Show Cause    not issued Therefore
                    Notice)      amount not quantified.

          13.                   Additional amount of duty disclosed                   : Rs.48,52,382.01
                  And accepted as payable : [See Note 3]"
 

6. The statement containing particulars referred to in column 10 of the application, along with work sheet is stated to have been filed with the application in a sealed cover. According to the petitioner the disclosure about under-valuation in the invoices was only in respect of 28 consignments for which it had admitted a duty liability of Rs.48, 52, 382.01.

7. The application was resisted by the Revenue, inter alia, on the ground that it had been filed by the petitioner with a view to stall investigations; it was premature and though the DRI has not issued a show cause notice in the case, their investigations in respect of 36 consignments has revealed that the applicant had evaded customs duty of approximately Rs. 1.14 crores and, therefore, the disclosure made by the applicant for Rs.48,52,382.01 was not full and true.

8. Rejecting the objection raised by the Revenue, vide order dated 26 November 2001, the Commission allowed the application to be proceeded with under section 127C(1) of the Act. Dealing with the objection of the Revenue that the disclosure in the application was not true and complete, the Commission observed that the application has been made on the basis of the material available with the petitioner, which has been provided in a sealed cover to the Commission in terms of the Customs and Central Excise Settlement Commission Procedure, 1999 read with Rule 4 of the Customs (Settlement of Cases) Rules, 1999 and the said information shall be considered by the Board after passing the order under Sub-section (1) of section 127C of the Act. The Commission also observed that the documents gathered by the DRI during the course of investigations, indicating evasion of duty shall also be considered at the time of passing of final order and not at the admission stage. However, notwithstanding the admission of the application the Commission ordered that the DRI will be free to investigate into the case and issue show cause notice, if necessary, during the pendency of the application, till it was finally disposed of.

9. The petitioner protested against the grant of liberty to the Revenue to continue with the investigations by filing written opinion of a former Judge of the Supreme Court. An application dated 18 December 2001 was moved before the Commission by the petitioner, seeking a direction to the DRI not to summon the petitioner for further investigations. However, before any order could be passed on the application, on 31 December 2001, 9 January 2002 and 14 January 2002 three show cause notices were issued by respondent No.4 in respect of the goods cleared by the petitioner from Delhi and Mumbai. Petitioner's aforenoted application was considered by the Commission on 16 January 2002. Inter alia, observing that the intention of the Commission to allow the DRI to investigate into the case was to ensure that the DRI is able to quantify the duty payable by the petitioner in this case which involves 172 consignments and also the fact that certain evidences have to be obtained from the supplying country, the Commission ordered that DRI would no longer carry out any investigation in the case. The Commission also directed the DRI to furnish information with respect to the Bill of Entry, invoice value as declared therein and the value ascertained during the course of investigation and subject matter of the three show cause notices relating to 107 consignments (out of a total of 172 consignments).

10. Finally vide order dated 7 August 2002 the Commission confirmed the duty liability of Rs.1,20,53,871.00 in respect of 36 consignments and rejected the disclosure contained in the application. In respect of the remaining 71 consignments (subject matter of the three show cause notices) applying the same principle, a duty liability of Rs.3,91,60,885.00 was determined. The Commission also directed the petitioner to pay interest at 10% in respect to the duty demand on 36 consignments besides imposing a penalty of Rs.40 lakhs on the petitioner.

11. Aggrieved by the said order, the petitioner has filed the present writ petition.

12. The order is challenged mainly on the ground that since the application under section 127B of the Act related to 28 consignments, only in respect of which the petitioner had information from the supplier that there were contrary declarations by the aforenoted party in Hong Kong and based on the said information the petitioner had accepted its vicarious liability in respect of 28 shipments, the Commission did not have the jurisdiction to deal with other consignments, in respect whereof three show cause notices had been issued.

13. The petition is resisted by the respondents. In the affidavit-in-opposition, it is pleaded that the petitioner had approached the Commission for settlement of the case and had forwarded a list of 172 Bills of Entry for the goods imported by them during the period 1 March 1997 to 31 August 1999; in the show cause notices it had been clearly stated that the under valuation resorted to by the petitioner in respect of 36 consignments had been applied in the same ratio for the 71 consignments, imported during the same period and from the same party in Hong Kong; the petitioner had never raised before the Commission any objection with regard to their proceeding with the settlement of the case in respect of all the consignments subject matter of the show cause notices and, therefore, the Commission was within its jurisdiction to determine the duty liability of the petitioner in respect of 107 consignments.

14. We have heard learned counsel for the parties, who have also taken us through various documents filed before the Commission.

15. The main submission of Mr.A.S.Chandhiok, learned senior counsel for the petitioner, is with regard to the jurisdiction of the Commission to determine the liability of the petitioner in respect of 107 consignments, as against 28 consignments (later on modified to 36 consignments) for which the petitioner claims to have made the application for settlement. It is strenuously urged by the learned counsel that since the petitioner's application under section 127B of the Act pertained only to 28 Bills of Entry, the Commission had no jurisdiction to traverse beyond these consignments without the concurrence of the petitioner as stipulated in section 127E of the Act. It is urged that the Commission having suo motu proceeded to pass an order under section 127C(7) of the Act in respect of 172 consignments, its order is void ab initio. In support of his stand that the proceedings before the Commission had proceeded on the basis of 36 Bills of Entry, learned counsel has referred us to the Commission's order dated 26 November 2001, wherein the stand of the DRI to the effect that they have been able to obtain evidence from Hong Kong in respect of 36 consignments and on that basis additional duty liability works out to approximately Rs.1.14 crores has been noted. It is asserted that unlike Chapter XIX A of the Income Tax Act, 1961, where-under settlement of a case is in respect of each of the assessment year, settlement of the case under Chapter XIV A of the Act is in respect of each Bill of Entry. Learned counsel would also urge that even if it was assumed for the sake of argument that the Commission could pass an order under section 127C(7) in respect of the consignments received during the period from 1 January 1997 to 31 August 1999, subject matter of the three show cause notices, yet there was no evidence with the Commission of under valuation in respect of 71 Bills of Entry, for which additional duty has been clamped on the petitioner. Learned counsel has also contended that the order of the Commission suffers from a procedural irregularity inasmuch as the Commission had called for report under section 127C(6) from the DRI and not from the Commissioner concerned. Residually, it was submitted that the Commission has also erred in not granting relief of MODVAT credit against the additional customs duty demanded.

16. Per contra, Mr.Jayant Bhushan, learned senior counsel for the Revenue, while supporting the conclusion of the Commission, has submitted that once the petitioner had approached the Commission for settlement of its demand for the period from 1 January 1997 to 31 August 1999 (Column 5 of the application), the number of consignments received during the period is irrelevant. Laying emphasis on the prayers made by the petitioner in their application, it is urged that having prayed for stay of all the investigations undertaken by the DRI in respect of all the imports during the afore noted period and grant of immunity from prosecution, payment of interest, levy of penalty in respect thereof, the petitioner is now estopped from contending that the settlement had to be confined only to 28 consignments or 36 Bills of Entry. It is urged that the mere fact that the petitioner had admitted his additional liability in respect of only 28 Bills of Entry, by putting them in a sealed cover, the Settlement Commission was not bound to accept their stand in toto. It is also pointed out that the intention of the Settlement Commission in this behalf was made clear in their order dated 26 November 2001, while deciding to proceed with the application when they had observed that the information contained in the sealed cover and the evidence collected by the DRI shall be considered only at the time of passing the final order. To buttress his stand that the application for settlement was for 172 Bills of Entry and, therefore, petitioners concurrence, as envisaged in section 127E of the Act was not required, Mr.Bhushan has referred us to a letter dated 12 October 2001 addressed by petitioner's counsel to the DRI, objecting to the issue of summons to his clients, on the plea that in the order dated 26 July 2001 the Chairman of the Commission, while ordering that the matter shall be dealt with by the Principal Bench at Delhi, it had been specifically recorded that the application related to 172 shipments during the period 1 March 1997 to 31 December 1999 but the petitioner had not raised any objection thereto.

17. We find substance in the submissions of learned counsel for the Revenue. There is no gain saying that the Commission has to exercise power of settlement in accordance with the provisions of the Act. It cannot settle any case de hors the relevant provisions of the Act. Therefore, before we advert to the issues raised, it will be necessary to have a bird's eye view of the provisions in Chapter XIV A of the Act, having bearing on the controversy involved.

18. Section 127B of the Act provides that an application for settlement may be filed at any stage of a case relating to the applicant in the prescribed form, containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of Customs duty accepted to be payable by him and such other particulars as may be specified by rules, including the particulars of such dutiable goods in respect of which he admits short levy on account of mis-classification or otherwise of goods.

19. The term 'case' has been defined in Clause (a) of section 127A of the Act, to mean any proceeding under the Act for the levy, assessment and collection of Customs duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before the proper officer or the Central Government on the duty on which an application under sub-section (1) of Section 127B is made.

20. Section 127C sets out the procedure for dealing with the application received under section 127B. For the sake of convenience, the section, insofar as it is relevant for our purpose, is reproduced below:

"127C. Procedure on receipt of application under section 127B.-(1) On receipt of an application under section 127B, the Settlement Commission shall call for a report from the Commissioner of Customs having jurisdiction and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application:

Provided that an application shall not be rejected under this sub-section, unless an opportunity has been given to the applicant of being heard:

Provided further that the Commissioner of Customs shall furnish such report within a period of one month of the receipt of the communication from the Settlement Commission, failing which it shall be presumed that the Commissioner of Customs has no objection to such application; but he may raise objections at the time of hearing fixed by the Settlement Commission for admission of the application and the date of such hearing shall be communicated by the Settlement Commission to the applicant and the Commissioner of Customs within a period not exceeding two months from the date of receipt of such application, unless the presiding officer of the Bench extends the said period of two months, after recording the reasons in writing.

XXX

(6) Where an application is allowed to be proceeded with under sub-section (1), the Settlement Commission may call for the relevant records from the Commissioner of Customs having jurisdiction and after examination of such records, if the Settlement Commission is of the opinion that any further enquiry or investigation in the matter is necessary, it may direct the Commissioner (Investigation) to make or cause to be made such further enquiry or investigation and furnish a report on the matters covered by the application and any other matter relating to the case.

(7) After examination of the records and the report of the Commissioner of Customs received under sub-section (1), and the report, if any of the Commissioner (Investigation) of the Settlement Commission under sub-section (6), and after giving an opportunity to applicant and to the Commissioner of Customs having jurisdiction to be heard, either in person or through a representative duly authorized in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Customs or the Commissioner (Investigation) under sub-section (1) or sub-section (6). d

21. Sub-section (7) of section 127C of the Act provides that after examining the entire record and the report of the Commissioner of Customs, the Commission shall "pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Customs or the Commissioner (Investigation)", in accordance with the provisions of the Act. In other words, the Commission is not only required to act in accordance with the provisions of the Act, its jurisdiction is also confined to the matters covered by the application before it. The words "other matter relating to the case not covered by the application but referred to in the report of the Commissioner" show that the Commission is empowered to take into consideration any other material not covered by the application but it is imperative that it must be one relating to the case before the Commission and is referred to in the report of the Commissioner.

22. The expression " other matter relating to the case not covered by the application" also appears in section 245D(1) of the Income Tax Act, 1961. The said provision is in pari materia with sub-section (7) of section 127C of the Act. The said expression came up for interpretation before the Supreme Court in Commissioner of Income Tax Vs. Paharpur Cooling Towers Pvt. Ltd. (1996) 219 SC 618. Their Lordships observed as follows:

"The further words "and any other material relating to the case not covered by the application" show that the commission can take into consideration any other material not covered by the application but it must be one relating to the case before it. It must be remembered that this Chapter [XIX-A] prescribes a procedure which is a departure from the normal procedure provided by the Act. Once an application is admitted-an application can be made only in respect of a pending case-the commission takes over all the proceedings relating to that case which may be pending before any authority under the Act. But this power is confined to the case before the commission, which means the case relating to the assessment year for which the application for settlement is filed and admitted for settlement."

23. The Court thus held that the Commission cannot travel beyond the assessment year for which the assessed has sought settlement of the case.

24. At this juncture, it will be useful to notice as to what is provided in section 127E of the Act, on which heavy reliance is placed by learned counsel for the petitioner. The section empowers the Commission to reopen any completed proceedings connected with the case before it. However, this power is circumscribed by the requirements expressly stated in the section itself. The requirements are: (i) such reopening is necessary or expedient for the proper disposal of the case before it; (ii) the reasons for such information are recorded in writing by the Commission; (iii) the applicant must give his concurrence therefor; (iv) no proceedings can be reopened after the expiry of five years from the date of the application under sub-section (1) of section 127B of the Act.

25. Explaining the scope and purpose of section 245E of the Income Tax Act, which provision is again in pari materia with the provisions of section 127E of the Act, the Supreme Court has held in Paharpur Cooling Towers case (supra) that the section contemplates reopening of the proceedings not for the benefit of the assessed but in the interests of the Revenue. It contemplates a situation where the case before the Commission cannot be satisfactorily settled unless some previously concluded proceedings are reopened, which would normally be to the prejudice of the assessed. It is precisely for this reason that the section says that it can be done only with the concurrence of the applicant.

26. As noticed above the grievance of the petitioner in the present case is that without its concurrence the Commission was not competent to bring within the ambit of "case" before it 71 additional Bills of Entry because its application before the Commission was for settlement of "case" pertaining to 28 consignments in the first instance but later on consenting to the inclusion of 8 more consignments. Though on the first blush the argument of the petitioner appears to be attractive because undoubtedly the Commission cannot make the order under the said provision without the concurrence of the applicant, otherwise it would be in conflict with the mandatory provision of the section, but having closely examined the contents of the application filed by the petitioner under section 127B of the Act and the Annexure thereto, we do not find much substance in it. We have no hesitation in holding that on the facts in hand section 127E is not at all attracted as the Commission has not gone beyond the matter relating to the "case" before them.

27. In the first place it is evident from the information furnished by the petitioner against Column No.5 of the application in Form SC-1, extracted above, that the period/dispute in connection with which the application for settlement was made under section 124B was from 1 January 1997 to 31 August 1999. Then the information furnished against Column No. 10 in the Annexure to the application filed in sealed cover was as under:

"1. Details of information which has not been correctly declared in the Bill of Entry/Shipping Bill:

It appears that the value declared on the Bills of Entry do not correspond with the value declared by the supplier at the time of export from Hong Kong. The applicant is not aware of the circumstances under which this anomaly had arisen. It is submitted that the applicant has paid and remitted only the invoice value for the goods as is evident from the bank transaction in this regard relating to remittance of foreign exchange. It is possible that the supplier had declared a higher value at the time of export for his own purposes may be to meet certain export obligations or other commitments to export. There is no independent evidence of the value at which such goods are sold to third parties in the course of international trade. Under the GATT based Valuation Rules what is relevant for the purpose of valuation of imported goods is the transaction value at which the goods are imported. To the best of the knowledge of the applicant such goods are not being imported by any third party. Further these goods are imported for general use. These are made to particular specification for a specific use. However, since the applicant is a law abiding citizen and is not interested in protracted litigation, the applicant is willing to get the value of the imported goods enhanced and pay the differential duty thereon as per worksheet enclosed.

2. Additional amount of duty payable on the goods covered in the Bill of Entry and the manner in which such duty has been derived:

Total Bills of Entry No.186

3. Duty liability accepted out of the total duty demanded in the show cause notice, if any, issued and the manner in which such duty liability has been derived:

Rs.48,52,382.01"

28. It would also be relevant to notice the details of the worksheet and the note appended thereto forming part of the afore-extracted Annexure. It reads as follows:

WORKSHEET

Imports during 1-1-97 to 31.8.99 :

a) FOB value of all imports                  : Rs. 9,55,35,321.54
b) Assessable Value                              : Rs.10,88,76,755.62
c) Basic Customs Duty                            : Rs. 3,10,35,187.03
d) Additional Duty of Customs                    : Rs. 1,28,84,139.11
e) FOB value of 28 Bills of Entry in
 respect of which there is discrepancy
between declared value and the value
declared on the export documents.                : Rs. 1,98,79,804.26
f) Actual freight as per B/L for                 : Rs. 11,57,943.70 
   28 B's/E
g) Insurance at 1.125% for 28 B's/E              : Rs. 1,67,727.10
h) Landing charges for 28 B's/E                  : Rs. 2,12,068.36
i) Assessable Value (28 B's/E)                   : Rs. 2,14,17,542.12
j) Basic Customs duty as at the rates
 indicated on the B/E for 28 B's/                : Rs. 73,03,283.99
 k) Assessable value for additiona               : Rs.(i)+ (j)=
 duty      Rs.2,87,20,826.11
 l) Amount of additional duty                    : Rs.25,25,830.96
The amount is available as Modvat and therefore Revenue neutral.
 m) Total duty disclosed                  : Rs.48,52,382.01
 n) Amount deposited                             : Rs. 1 Crore
 o) Balance to be refunded                       : Rs. 51,47,617.99 
 

 NOTE  
 

During investigation the DRI showed certain papers indicating difference in the invoice value and that declared in the export documents purportedly documents filed by exporter at Hong Kong. These details were only in respect of 40 Bills of Entry, out of which only 28 Bills of entries had discrepancy. In respect of other 146 Bills of Entry the declared value and the export value appears to be the same as most of the imports were directly from China, whereas, the 40 Bills of Entry relates to exports from Hong Kong, none of these Bills of entries were shown to the applicant nor any allegations made in regard to the declared value and the invoice value. In the circumstances even though during the period referred to above, 186 Bills of Entry were involved only in respect of 28 Bills of Entry there is alleged discrepancy. In the circumstances the applicant has computed the duty difference only in respect of those 28 Bills of Entry on the basis of the information furnished by the supplier and the DRI."

29. Thus, from the information disclosed by the petitioner in the application and the Annexures forming part thereof, it is clear to us that the application for settlement was made in respect of the imports made during the period from 1 January 1997 to 31 August 1999, although the petitioner had accepted additional duty demand only in respect of 28 consignments. It is significant to note that at the time when the application for settlement was made, only investigations into the imports had commenced; statements under section 108 of the Act had been recorded and searches had taken place at petitioner's premises. It was precisely for this reason that against Column No. (7) of the application, extracted above, it was stated by the petitioner that the proceedings to which the application for settlement relates are "the search and seizure operations" conducted by the DRI and summons under section 108 of the Act, etc. Therefore, unless issue of summons and search and seizure operations are construed as "proceedings under the Act for the levy, assessment and collection of customs duty" within the meaning of Clause (a) of section 127A of the Act, there was no "case" pending in respect of any of the imports during the afore-noted period and the petitioner's application for settlement was premature, as was sought to be pleaded by the Revenue. But the said objection having been over-ruled by the Commission, the petitioner cannot now be heard to say that the case related to each of the Bills of Entry individually and not to the period for which investigations had been started by the Revenue. The investigations ultimately culminated in the issue of afore-mentioned three show cause notices. Taking note of the said show cause notices, vide order dated 16 January 2002, on petitioner's application, the Commission had stayed further investigations in the case and had directed the Revenue to furnish particulars in the form of tabular statement, Bills of Entry, showing the invoiced value as declared in the Bill of Entry; the ascertained value during investigations and document on the basis of which the value had been arrived at in the three show cause notices. Even at the cost of repetition we may note that the said three show cause notices pertained to 107 consignments, which have now been adjudicated upon by the Commission. Admittedly, the petitioner did not raise any objection to the observations made by the Commission in the said order, be it with respect to the number of transactions involved, recorded as 172 import consignments or the calling of information with respect to all the consignments, subject matter of the show cause notices. In the light of these facts, the irresistible conclusion is that the "case" before the Commission pertained to the imports made by the petitioner during the period from 1 January 1997 to 31 August 1999, in respect whereof three show cause notices were issued, covering 107 Bills of Entry and not to 28 consignments, as pleaded by the petitioner. In that view of the matter the entire gamut of determination of duty liability in respect of these show cause notices was open before the Commission.

30. Our view is fortified also from the fact that in the application for settlement, the petitioner had prayed for stay and dropping of all the investigations, which had been initiated against them. As per the prayer clause immunity from payment of penal interest, penalty and prosecution proceedings under section 112(a), 114A and 135 of the Act was also prayed for in respect of the entire period, subject matter of investigations and the relief sought was not confined to 28 Bills of Entry.

31. Therefore, we reject the contention of learned senior counsel for the petitioner that the Settlement Commission did not have the jurisdiction to pass an order in respect of additional 71 Bills of Entry. Consequently, we hold that the order passed by the Commission cannot be said to be without jurisdiction.

32. As regards the contention of learned senior counsel for the petitioner that there was no evidence with the Commission of under valuation in respect of 71 Bills of Entry, to determine petitioner's additional liability for duty, we feel that the nature and source of the goods being the same, there is no illegality in Commission's adopting the comparable value of the goods, which was adopted by it in respect of 36 consignments, particularly when in respect of at least 28 consignments the petitioner had admitted under valuation. Furthermore, it is not within the scope of our power of judicial review to go into the validity of the said determination, particularly when under section 127J of the Act every order of settlement passed under sub-section (7) of section 127C shall be conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in the Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force. What is required to be seen is whether the order of Commission is contrary to any of the provisions of the Act and if so, has it prejudiced the petitioner. This Court is concerned with the illegality of the procedure followed and not the validity of the order. In other words, the judicial review is concerned not with the decision but with the decision making process [See: Jyotendrasinhji Vs. S.I.Tripathi & Ors., (1993) suppl. 3 SCC 389: R.B.Shreeram Durga Prasad Vs. Settlement Commission & Anr. (1989) 176 ITR 169]. Having come to the conclusion that the order passed by the Commission is in consonance with the provisions of the Act, there is no ground to interfere with the impugned determination of tax liability by the Commission.

33. In so far as the plea of learned counsel for the petitioner that the impugned order suffers from procedural irregularity is concerned, the submission, being hyper technical, is stated to be rejected. Admittedly, the investigations were being conducted by the DRI and the entire record pertaining to the imports was in their possession. Therefore, report with respect to investigations had to be called from the DRI, particularly when the petitioner had filed application for settlement at the pre-adjudication stage.

34. What now remains to be considered is the plea of the petitioner that the Commission has failed to grant relief of MODVAT against the additional customs duty demanded. We find that in the impugned order, there is no discussion on the issue. Although the stand of the revenue is that the petitioner is not entitled to a MODVAT credit as they have not paid any counter vailing duty (CVD) on the under invoiced components but without recording any final opinion on the issue, we permit the petitioner to move an appropriate application before the Commission in respect of the said claim. We are confident that as and when such an application is moved the Settlement Commission shall deal with it on its own merits.

35. For the foregoing reasons, we do not find any merit in the writ petition. The same is accordingly dismissed; rule is discharged and interim order dated 16 September 2002 stands vacated. There will, however, be no order as to costs.