TMI Blog2016 (4) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication, to the Settlement Commission to have the case settled, in such form and in such manner as may be prescribed and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction,…." (Emphasis supplied). Therefore, under section 32E(1) an application for settlement can be filed before the Commission where there is a non-disclosure of duty liability before the Central Excise Officer. Under section 32-O(1)(i) a person is barred from filing a subsequent application for settlement where he has suffered an order passed under section 32F(5) and therein the "Explanation" has been introduced that the concealment of particulars of duty liability "relates to any such concealment made from the Central Excise Officer". Thus, "Explanation" in 32-O(1)(i) is consistent with the statutory intent in section 32-E(1). As seen "Explanation" introduced is a reiteration of the statutory provisions in section 32E(1). Hence, the "Explanation" is clarificatory in nature. Therefore, as the bar under section 32-O(1)(i) was always in vogue, the submission in this regard on behalf of the respondent is unacceptable. Purs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra Pal And Mir Dara Sheko, JJ. For the Appellant : Mr. R.N. Das, Senior Adv. and Mrs. Santa Mitra For the Respondent : Mr. Sudhir Kumar Mehta ORDER Soumitra Pal, J. Though this appeal was heard along with MAT 974 of 2015 and APO No. 187 of 2015 as common questions of law are involved, for clarity, this judgment is delivered separately. This appeal has been preferred by the Commissioner of Central Excise and Service Tax, Durgapur Commissionerate, against the judgment dated 26th August, 2014 passed in W.P. 393 of 2014 (Rohit Ferro Tech Limited and others versus Settlement Commission and others) whereby the learned Single Judge had disposed of the writ petition by passing the following order:- In this case four show-cause notices were dealt with by the Settlement Commission at an earlier point of time. This case arises out of an application made by the writ petitioner under Section 32E of the Central Excise Act, 1944 with regard to the fifth show-cause notice. It appears that the Settlement Commission in its order dated 28th March, 2014 has not made a correct interpretation of Section 32-O(I) of the Central Excise Act, which is reproduced below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion will proceeded to consider their case on merits. This writ application is accordingly disposed of. Mr. R.N. Das, learned senior advocate for the appellant had submitted that it is apparent from the judgment under challenge that earlier four show cause notices were issued. On each occasion the respondent filed applications for settlement under section 32E of the Central Excise Act, 1944 (for short 'the Act'). Those were considered by the Customs, Central Excise Settlement Commission (for short 'the Commission') and orders on each of those applications were passed imposing penalty for concealment of duty particulars. The respondents, in appeal, that is the writ petitioners, had accepted the said orders. Under section 32M of the Act those orders passed under section 32F(5) are conclusive and binding on the respondent and cannot be reopened. As it was found by the authorities that the respondents herein were again indulging in clandestine manufacture and clearance of goods, show cause notice dated 7th May, 2013 was issued. It was the fifth show cause notice. The respondent filed an application for settlement admitting removal of finished goods without pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ); 6) Union of India v. Dharamendra Textile Processors: 2008 (231) ELT 3 (S.C); 7) Union of India v. Ind-Swift Laboratories Ltd.: 2011(265) ELT 3(S.C); 8) Exotica Global Pvt. Ltd. v. Union of India: 2015(319) ELT 31 (Cal) and 9) Vinod Kumar Mathur v. Union of India: 2015(322) ELT 107 (Bom). The issues which require consideration are:- i) Whether with the introduction of the Explanation to section 32-O(I)(i ) there was a change in law with regard to the one time bar under the said section; ii) Whether with the introduction of sub-section (2) to Section 32-O with effect from 1st June, 2007, subsequently omitted on 8th May, 2010, the concept of one time approach under section 32-O was removed and iii) Whether in the earlier proceedings before the Settlement Commission penalty was imposed on the respondents, that is the writ petitioners, for concealment of particulars of their duty liability. Before dealing with the issues, it is appropriate to refer to section 32-O(1)(i) and sub-section 2 of section 32 which are as under:- 32-O. Bar on subsequent application for settlement in certain cases.- [(1)] [Where, [***]]- (i) an order of settlement passed under sub-section (7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution. Thereafter on 12.04.2011, M/s. Rohit Ferro- Tech Ltd. again approached the Settlement Commission vide their application No.664/2011. This matter related to removal without payment of Central Excise Duty of 85.4 MT. The duty involved in this case was ₹ 4,16,663/-. The duty in this case was settled at ₹ 3,16,663/- along with interest and a penalty of ₹ 50,000/- was imposed on M/s.Rohit Ferro-Tech Ltd. and immunity was granted from prosecution. M/s. Rohit Ferro-Tech ltd. again approached the Settlement Commission on 16th February, 2012, vide their application No.803/2012. In this case, they had incorrectly availed Cenvat Credit amounting to ₹ 30,83,857/-. The duty in this case was settled at ₹ 30,83,857/- along with applicable interest. A penalty of ₹ 1,50,000/- was imposed on M/s. Rohit Ferro-Tech Ltd. The Bench also granted immunity from prosecution. Now, M/s. Rohit Ferro-Tech Ltd. have again approached the Settlement Commission under Application No.953 of 2013 which involves evasion of ₹ 19,80,703/- as Central Excise Duty. 25. In all the earlier orders passed by this bench in respect of the applicant, nowhere the applicability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as show caused for demand of duty interest and penalty. Penalty was imposed by the Settlement Commission. It has been held by the 3-Member Bench in the case of M/s. Shkambhri Overseas Trade Private Limited that the bar of Section 32O(1)(i) of the Act applied in such a case as the present one and the party is barred from filling a subsequent application for settlement. 35. The applicant M/s. Rohit Ferro-Tech Limited has come for the fifth time to get his application settled by the Settlement Commission. He had been earlier penalized. The provisions of Section 32 O(1)(i) are clear. The bar against filling of subsequent application under Section 32 O(1)(i) is attracted in this case to make the application of the applicant liable to dismissal. The Bench has no jurisdiction to entertain such an application as it is barred by Section 32)(1)(i) of the Central Excise Act, 1944 and is liable to dismissal, without going into the merits of the case. The applications of the co-applicants cannot be settled with the main applicant is not eligible to come before the Settlement Commission. In terms of Section 32O(1)(i) of the Central Excise Act, 1944, without going into the merits of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was removed, cannot be accepted as no earlier application for settlement identical to the issue was pending before the Commission when any of the subsequent applications were filed. To put the facts in proper perspective, it is to be noted that the Commission had disposed of the first application of settlement filed on 22nd August, 2005 by order dated 3rd March, 2006 by directing the respondents to pay duty of Central Excise. Thereafter, pursuant to the notice to show cause dated 25th May, 2010 for the period 3rd July, 2008 to 9th September, 2008, the respondents had filed an application for settlement on 22nd July, 2010 which was disposed of by order dated 26th November, 2010 by imposing penalty and interest. Then again pursuant to the show cause notice dated 9th July, 2010 the petitioner had filed an application for settlement on 12th April, 2011 which was disposed of by the Commission by passing an order imposing penalty. Therefore, as and when the Commission took up the application for settlement for hearing, no earlier application on the identical issue was pending before it. Hence, the section 32-O(2) since deleted, does not come to the aid of the respondents here ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
