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2015 (10) TMI 728 - CALCUTTA HIGH COURT

2015 (10) TMI 728 - CALCUTTA HIGH COURT - 2015 (322) E.L.T. 824 (Cal.) - Evasion of duty - Imposition of penalty - Held that:- order of the Settlement Commission on the previous occasion is lucid and leaves no room for doubt. The order of January 4, 2011 found that the petitioner company was liable to the extent of ₹ 33,44,227/- on account of additional duty. Such amount was required to be appropriated from the sum of ₹ 35 lakh that had been kept in deposit by the petitioner company. .....

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at the petitioner company ought to be penalised to a certain extent for having evaded the duty that it was originally liable to pay. - In the light of the penalty imposed on the petitioner company herein and such penalty covering the expression “concealment of particulars of his duty liability” in Section 32-O of the said Act, the Settlement Commission cannot be faulted for having rejected the subsequent attempt at settlement. - Decided against assessee. - W.P. No. 3043 (W) of 2015 - Dated:- 4-5 .....

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o. 2. The petitioner company proudly flaunts that it had dodged paying the duty leviable in a previous case whereupon it was slapped with a notice under Section 11 of the Act and it carried the matter before the Settlement Commission under Section 32E of the Act. Such provision permits an assessee, who has, inter alia, been served a show-cause notice for recovery of duty by a central excise officer, to approach the Settlement Commission to have the case settled by indicating the additional .....

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ommission. It is possible that such notice is not issued; it is than [sic] proceed with the application is deemed to have been given. The procedure before the Settlement Commission requires a report to be furnished by the Principal Commissioner of Central Excise or Commissioner of Central Excise having jurisdiction over the matter. If such report is not furnished within the time indicated, the Settlement Commission may proceed with the matter nonetheless. 4. Section 32F of the Act lays does .....

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Settlement Commission, whereupon the Settlement Commission disposed of the application by its order dated January 4, 2011. The operative part of the order provided for a penalty to the extent of ₹ 5 lakh on the petitioner company together with the additional duty in excess of ₹ 33 lakh. In imposing the penalty on the assessee, the Settlement Commission accepted or is deemed to have found as a matter of fact that the assessee had not deposited or disclosed the quantum of excise duty p .....

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e said Act, it implies that there was an attempt to dodge the amount that was originally due from such assessee. Penalty, by its very nature, is the imposition of a levy or the like for the wrongful conduct of the person suffering the same. 7. When an assessee approaches a Settlement Commission after receiving a notice of demand indicating that it had paid less duty than what was due on the relevant transaction, it accepts the demand in full or in part by evincing its desire to settle the a .....

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n additional amount of duty, though the assessee need not to submit the entire amount contained in the demand and may contend that a lesser amount of additional duty is payable than demanded. 8. In this petitioner company having previously approached the Settlement Commission after receipt of the show cause notice or notice of demand, it offered to pay a substantial part of the additional duty demanded and, thereby, admitted that it had paid less than what it ought to have in course of the .....

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fastened to this petitioner company upon the order of the Settlement Commission being passed on January 4, 2011. 9. Section 32-O of the said Act permits subsequent applications for settlement being made, provided the assessee has not been penalized previously on the ground of concealment of particulars of his duty liability…. . It is necessary to see the relevant provision without its explanation, which is not necessary for the present purpose : Section 32-O. Bar on subsequent appli .....

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concealment of particulars of his duty liability , pertains to the application made before the Settlement Commission. If that were to be so, every knave and his accomplice would conceal the duty payable in course of every transaction and approach the Settlement Commission only in the cases where he would be caught and would be slapped a show cause notice for additional duty. 11. The scheme of the provisions introduced for settlement of a demand indicates that a person may approach the Settl .....

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manded to be payable, it accepted and acknowledged that it had failed to pay the duty that it was originally obliged to. It is possible in a particular case that there may be a bona fide reason for not paying the appropriate quantum of duty, but the adjudication on the reasons for not tendering the appropriate duty is conducted by the Settlement Commission. If the Settlement Commission is of the opinion that, despite the exercise of due diligence and for reasons beyond the control of the assesse .....

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ve concealed the particulars of the duty liability. In the petitioner-company having exhausted its right to approach the Settlement Commission upon the order of January 4, 2011 being pronounced, the petitioners could not have carried the demand now made by way of a subsequent application under Section 32E of the said Act before the Settlement Commission. 13. The order impugned dated August 27, 2014 is appropriate and perfectly justified and it read the relevant provision as it ought to be. .....

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ad been imposed on the writ petitioner. It was in such circumstances, that the order required the Settlement Commission to reconsider the matter. 15. The earlier order passed by the Settlement Commission in that case is not quoted in the relevant order. It is, thus, not possible to appreciate the circumstances in which the order dated August 24, 2014 in W.P. 392 of 2014 came to be made. 16. In the present case, the order of the Settlement Commission on the previous occasion is lucid an .....

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