Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2013 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (1) TMI 305 - HC - Central ExciseShort Payment of Duty - clearance of excisable goods veneer - amounts in excess of invoice values realized either through cash or through D.Ds., which was in- turn utilized for unaccounted expenditure - the appellants in order to camouflage the excess amounts received through D.Ds. indulged in the fictitious sale of non-excisable goods like sawn timber door/window frames, trading - demand of sum of Rs.21,48,55,018/- besides a penalty u/s 11-AC along with interest u/s 11 AB - appellants approached the Settlement Commission - whether the adjudication order passed by the Commissioner of Central Excise, Visakhapatnam which was passed after filing of an application before the Settlement Commission under Section 32E and was declared as "Non Est" by the Settlement Commission is valid in law ? - Held that:- In view of the language of clause (7) of Section 32F the Settlement Commission was entitled to pass final orders not only in relation to matters covered by the application for settlement but also any other matter relating to the "case" not covered by the application, but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub section (1) or sub section (6). The matter relating to the lack of jurisdiction of the Settlement Commission was specifically raised by the Commissioner of Central Excise in his report dated 13-09-2004 submitted to the Settlement Commission under clause (1) of Section 32F and the said issue has been decided by the Settlement Commission in its order of admission dated 31-05- 2005. Therefore its finding that the order of the Commissioner of Central Excise dated 30-07-2004 is non est in law is a finding given by it in exercise of jurisdiction conferred on it under Section 32F (7). Therefore, it cannot be said that the said finding given by the Settlement Commission is without jurisdiction. Therefore the said order of the Settlement Commission cannot be denuded of its efficacy by any collateral attack or in incidental proceedings. As this portion of the order of the Settlement Commission dated 31-05-2005 was admittedly not challenged by the Revenue in W.P. of 2005 or in S.L.P. of 2006, the Revenue is barred by the principle of constructive resjudicata from reagitating the said finding of the Settlement Commission before the Tribunal collaterally. The Tribunal therefore is bound to proceed on the footing that the order dated 30-07-2004 of the Commissioner is non est in law and therefore it ought to have held in the impugned orders that the Revenue could not have challenged the order dated 30-07-2004 of the Commissioner in the appeals before it. It should have therefore rejected the said appeals filed by the Revenue as not maintainable. As the Settlement Commission in its final order dated 17-01-2007 had rejected application for settlement and remitted the case back to the adjudicating authority for adjudication of the matter in terms of the show cause notice dated 01-11-2003, the said authority should consider the matter afresh uninfluenced by the order in original No.14/2004 dated 30-07-2004 of the Commissioner of Central Excise, the order dated 17-01-2007 of the Settlement Commission or the impugned orders dated 06-09-2007 of the CESTAT. Therefore the appeals are allowed and the impugned orders of the CESTAT are set aside.
|