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2022 (10) TMI 922 - HC - Central ExciseSettlement Application filed by the appellant under Section 32 L of the Central Excise Act, 1944 dismissed - alleged non-cooperation by the appellant - HELD THAT:- Neither parties have questioned the 1st Report (legality). Admittedly, the 1st Report was made at the request of the appellant herein to the Respondent Commission to investigate the production capacity of the Plant pursuant to the order of this Court whereby, the order of the Settlement Commission dated 18.05.2011 rejecting the application on the ground of non-disclosure of true facts and non-cooperation was set aside. We intend to make it clear that we are not testing the legality of the 1st Report as neither parties to the Writ appeal have challenged the same and also the Report is stated to be made pursuant to and on the basis of the orders of this Court. Legality of the 2nd Report - HELD THAT:- As seen from the analysis of Section 32 F(4) of the Act normally the power to call for additional information/enquiry/Report is postulated on receipt of a Report from the Principal Commissioner and within the timelines setout therein and the said power can be exercised once and on such exercise the power would get exhausted. However in the instant case the 1st Report is stated to be made in view of the direction of this Court in W.P.No.13754 of 2011 dated 14.11.2011, the same having been furnished on 24.05.2012, it appears that the power of the Respondent Commission to call for a Report stood exhausted. Assuming that powers to call for the 2nd Report is available with the Respondent Commission we shall test the 2nd Report as one which the Commission can call for under Section 32 F (4) of the Act - the order of the 2nd investigation was made by the 1st Respondent Commission only on 21.06.2013 i.e., after more than one year and 45 days. It thus seems doubtful, if any reliance can be placed upon the 2nd Report, since the 2nd Report is clearly barred in terms of the timelines prescribed under Section 32(F)(4) of the Central Excise Act. Whether the timelines are mandatory or directory? - HELD THAT:- It has been consistently held that one of the test for determining whether a provision is mandatory or directory is to examine if the legislature provides for the consequences, which it does in the present case by requiring the Commission to proceed to dispose all the matters in terms of Section 32 F (5) if the Report is not received within the timelines prescribed. It is trite law that when consequences of failure to comply with a prescribed requirement is provided by the statute itself, there can be no manner of doubt that such statutory requirement must be interpreted as mandatory - The periods prescribed in the Schedule to the Indian Limitation Act, 1908, for bringing a legal proceeding are mandatory as the consequence of the expiry of the period of limitation is provided by Section 3 of the Act in that the court is enjoined to dismiss a legal proceeding instituted after expiry of the prescribed period. The order of the 1st Respondent Commission is vulnerable to challenge as prima-facie it appears to be in conflict with and disregard to the directions of this Court, wherein, the Commissioner was directed to examine the matter on merits. The Settlement Commission has grossly misdirected itself in not taking into account/ examining the case of the appellant which is impossibility and not improbability or difficulty in producing the quantum which is arrived at on the basis of the second report. The matter remanded back to the Respondent Commission to examine the matter and pass orders afresh in accordance with law - appeal disposed off.
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