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TMI Blog2014 (8) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or order or direction under Article 226 of the Constitution of India ordering and directing the respondents themselves, their officers and subordinates to refrain from acting upon or taking any further proceedings in pursuance of and/or in implementation and/or in furtherance of the impugned Final Order No.F.No.113/CEX/JRG/2012/SC(MB), passed by the Settlement Commission in Settlement Application No.SA(E)261/2012; (c) That this Hon'ble Court be pleased to restore the matter back to the files of the respondent No.3 and direct it to issue appropriate orders including the demand under section 11D of the Central Excise Act, 1944 after complying with the principles of natural justice; (c) that alternatively this Hon'ble Court be pleased to hold that the respondent No.3 is empowered to settle the part of the show cause notice and accordingly restore the matter back to the files of the respondent No.3 and direct it to issue appropriate orders on all the issues except the demand under section 11D of the Central Excise Act, 1944 and the issue for the demand under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Notice with respect to the said demand. It appears that as such the concerned Commissioner having jurisdiction sent its report to the Settlement Commission as per section 32F(4) of the Act. It appears that, however, the Settlement Commission was of the opinion that the contention of the petitioner with respect to section 11D is a question of law which may be beyond the purview of the Commission to settle. It appears that in view of the above, the learned advocate representing the petitioner suggested that the application may be settled only in respect of the first two issues, where duty demand has been accepted by the petitioner and the third issue relating to section 11D may be referred to the adjudicating authority for deciding as per law. However, the learned Settlement Commission did not agree with the same, neither decided the issue relating to section 11D though required to be decided and passed order under section 32F(5) of the Act nor accepted the suggestion made by the learned advocate appearing on behalf of the petitioner that the case may be settled only in respect of first two issues where duty demand has been accepted by the petitioner and the third issue relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act more particularly Sections 32F(3), 32F(4) and 32F(5). It is submitted that in the present case, as such, by order/notice dated 8/3/2013, an opportunity of being heard was granted to the petitioner as well as the Jurisdictional Commissioner of Customs having jurisdiction over the case as required to be provided under section 32F(5) of the Act. It is submitted that as such even the Commissioner also submitted report. It is submitted that therefore, the Settlement Commission was required to pass an order and determine the amount of duty, interest, fine and penalty, after following due procedure as required under section 32F(5) of the Act. It is submitted that in the present case, the learned Settlement Commission has failed to exercise powers under section 32F(5) of the Act and has materially erred in holding and/or observing that the Commission is not required decide the issue with respect to duty claimed under section 11D of the Act. It is submitted that the learned Settlement Commission has materially erred in rejecting the application submitted by the petitioner and passing order under section 32L of the Act by observing that duty of demand amounting to Rs. 35,13,847/- under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be sustained and the same deserves to be quashed and set aside and the Settlement Commission ought to have passed an appropriate order on the issue relating to demand raised under section 11D of the Act by exercising power under section 32F(5) of the Act. Making above submissions it is requested to allow the present Special Civil Application by quashing and setting aside the impugned order passed by the Settlement Commission and remand the matter to the learned Settlement Commission to decide the issue with respect to the demand of duty raised under section 11D of the Act after following due procedure as required under section 32F of the Act. 4. Ms.Manisha Lavkumar, learned advocate has appeared on behalf of the Department. It is submitted that as such the learned advocate appearing on behalf of the petitioner suggested that the Settlement Commission may pass order with respect to two demands which were admitted by the petitioner and with respect to third issue relating to section 11D of the Act to the adjudicating authority and the same is rightly rejected by the Commission, as the same is not permissible under the law more particularly under section 32F of the Act. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . During the course of hearing on 22.03.2013, it was pointed out by bench that the applicant contention with regard to section 11D had raised question of law which may be beyond the purview of the commission to settle. The ld. Advocate representing the applicant there upon suggested that the application in this case may be settled only in respect of first two issues where duty demand has been accepted by the applicant and the third issue relating to section 11D may be referred to the adjudicating authority for deciding as per law. 6.7. Looking to the facts circumstance of this case the Bench finds that the applicants have failed to cooperate in the proceeding before this commission. The demand of duty amounting to Rs. 35,13,847/- under section 11D of the Central Excise Act has not been accepted and rather a legal issue i.e. applicability of section 11D where there is no removal / sale of goods under an invoice has been raised. Their request to split the present application and settle it partially is also not correct and therefore rejected." 5.2. Considering the provisions of law, more particularly section 32E and 32F of the Act, the Settlement Commission is justified in not accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thirty days, the Settlement Commission shall proceed further in the matter without the report of the Commissioner. (4) Where a report of the Commissioner called for under sub-section (3) has been furnished within the period specified in that sub-section, the Settlement Commission may, after examination of such report, if it is of the opinion that any further inquiry or investigation in the matter is necessary direct, for reasons to be recorded in writing, the Commissioner (investigation) within fifteen days of the receipt of the report, to make or cause to be made such further inquiry or investigation and furnish the report within a period of ninety days of the receipt of the communication from the Settlement Commission on the matter covered by the application and any other matter relating to the case: Provided that where a Commissioner (investigation) does not furnish the report within the aforesaid period, the Settlement Commission shall proceed to pass an order under sub-section (5) without such report. (5) After examination of records and the report of the Commissioner of Central Excise received under subsection (3), and the report, if any, of the Commissioner (investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lement Commission shall not be less than the duty liability admitted by the applicant under section 32E. (9) Where any duty, interest, fine and penalty payable in pursuance of an order under sub-section (5) is not paid by the assessee within thirty days of receipt of a copy of the order by him, the amount which remains unpaid, shall be recovered along with interest due thereon, as the sums due to the Central Government by the Central Excise Officer having jurisdiction over the assessee in accordance with the provisions of Section 11. (10) Where a settlement becomes void as provided under sub-section 8, the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the Central Excise Officer having jurisdiction may, notwithstanding anything contained in any other provision of this Act, complete such proceeding at any time before the expiry of two years from the date of the receipt of communication that the Settlement became void." 5.3. At that stage, the petitioner is not supposed to accept the entire duty liability and/or liability ..... X X X X Extracts X X X X X X X X Extracts X X X X
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