Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2014 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (5) TMI 604 - HC - Central ExciseMaintainability of second application before the settlement commission where first application was dismissed earlier - Demand of additional excise duty - Interest - Held that:- though the provisions of the Civil Procedure Code, 1908, are not applicable to the Settlement Commission, but the principles of res judicata would be applicable. The second application filed by the petitioners would be barred if the first applications have been decided on merits. In absence of any decision on merits, and the first applications having been dismissed on technical ground of non-compliance of clause (d) of Section 32E(1) of the Act, the second applications after depositing of admitted additional excise duty and interest would be maintainable. There is nothing that under any of the clauses of Section 32-O the second applications of the petitioners will be barred. In the order dated 2-3-2012 no direction had been issued under Section 32L nor any such direction could be issued under Section 32L of the Act as the applications of the petitioners had to be rejected as not entertainable and no opinion could be recorded by the Settlement Commission. It is true, that under Section 32L the Settlement Commission could send the case back to the Central Excise Officer if in the opinion of the Settlement Commission, the person who made the application for settlement under Section 32E has not co-operated in the proceedings before the Settlement Commission. But no such opinion had been recorded, in the case in hand, therefore, the Settlement Commission could not send the case to the adjudicating authority, i.e. the Central Excise Officer. Since the petitioners’ earlier applications were dismissed on technical defect for non-compliance of the provisions of clause (d) of the proviso to sub-section (1) of Section 32E of the Act and the applications were not considered and decided on merits, therefore, the second applications filed by the petitioners after depositing the additional excise duty and interest would be maintainable and the order passed by the Settlement Commission dated 2-3-2012 and 18-5-2012 cannot be maintained and the writ petition deserves to be allowed and a direction is liable to be issued to the Settlement Commissioner to accept the second applications forthwith, which were returned back to the petitioners and thereafter decide the same in accordance with law - Decided in favour of assessee.
|