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2019 (6) TMI 1549 - Commission - Central ExciseMaintainability of Settlement Application - Rectification of certain error - applicant has finally submitted that the O-I-O had been issued on 22-2-2019 and that they had filed the settlement application prior to that and therefore the application is maintainable and not hit by provisions of Section 32(1) read with Section 31(c) of the Act - HELD THAT:- A plain perusal of Section 32E of CEA reveals that for the purposes of settlement, the case must be pending before an adjudicating authority as on the date of Application under Section 32E(1) of the Act and no application under Section 32E(1) can be made unless the conditions of the Proviso clauses (a) to (d) thereof, are complied with. Further, while the statute gives some discretion to the Bench in respect of condition (a), there is no discretion in respect of other conditions. The initial applications being violative of condition (d) was statutorily defective and could not have been treated as an application in strict legal sense, as the language used in the statute is that - ‘no such application shall be made unless’. The applicants resubmitted the applications after rectifying the defects and was received by the Commission Registry on 11-6-2019. Thus, on the face of it, the date of application has to be reckoned as the date of receipt of the valid application duly complying with the requirement of the law stipulated in Section 32E(1) of the Act. Otherwise, there will be a clear violation of the language of the law as stipulated in Section 32E(1) ibid. If the applicants’ argument that the date of the earlier defective application be treated as the date of filing of applications in the instant case is accepted then clearly it would be contrary to the mandate of the law that ‘no such application shall be made unless’ . Thus, the earlier invalid/defective application cannot be legally accepted as the application having been made under Section 32E(1) of the Act. The Bench holds that in the instant case the date of receipt of application is that date on which valid applications complying with the law were received, i.e., 11-6-2019. However, on the said date, the impugned SCN stood adjudicated vide O-in-O, dated 20-2-2019; hence, it was no more a ‘case’ that could be settled. The definition of ‘case’ under Section 31 of the Act, clearly stipulates that the proceeding has to be pending before an adjudicating authority on the date on which an application under Section 32E(1) of the Act is made. Applications under Section 32F(1) of the Central Excise Act, 1944 is rejected, as not maintainable and cannot be allowed to be proceeded with.
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