TMI Blog2017 (9) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no dispute as to the date of the order passed by the adjudicating authority. The date of the order is 7th December, 2016, though, the date appearing on the order itself is 2nd December, 2016 - There is no cavil to the conclusion that the date of the order in the present case is 7th December, 2016 and the date of the filing of the application before the Settlement Commission is 5th December, 2016. Thus, on the date when the application came to be filed before the Settlement Commission, the proceeding was pending before the adjudicating authority. In the circumstances, the Settlement Commission was in error in holding that the application before it was not maintainable. The applications of the Petitioners are held to be maintainable - petition allowed - decided in favor of petitioner. - W. P. (C) 2047/2017, W. P. (C) 2053/2017 - - - Dated:- 18-9-2017 - S. Muralidhar And Prathiba M. Singh, JJ. For the Petitioner : Mr. A.K. Prasad and Ms.Priyanka Goel, Advocates For the Respondents : Mr. Sanjeev Narula, Senior Standing Counsel for Revenue with Mr.Abhishek Ghai, Advocate ORDER Prathiba M. Singh, J.: 1. The short question that arises in these two writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a case within the meaning of Section 31 (c) of the CEA. This order is impugned in the writ petitions. Submissions of parties: 5. Mr. A.K. Prasad, learned counsel for the Petitioner, relies upon the decision in Qualimax Electronics Pvt. Ltd. v. Union of India 2010 (257) E.L.T. 42 (Del) (hereafter Qualimax ) to submit that the order of the Commissioner, though dated 2nd December, 2016 was dispatched only on 7th December, 2016, and the date of the order would thus be deemed to be the date of dispatch. He further relies on the judgment of the Bombay High Court in Vishnu Steels v. Union of India (2014) 299 E.L.T. 292 (hereafter Vishnu Steels ) which has also taken a similar view as this Court in Qualimax (supra). 6. The submission of Mr. Prasad is that since the application was filed by the Petitioner on 5th December, 2016, and the date of the adjudication order is 7th December, 2016 hence, the application was maintainable before the Settlement Commission as the case was still pending on the date when the application was filed. He thus submits that the application of the Petitioner deserves to be considered on merits by the Settlement Commission and the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of a case relating to him, make an application, before adjudication, 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, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification, under-valuation, inapplicability of exemption notification or CENVAT credit or otherwise and any such application shall be disposed of in the manner hereinafter provided: Provided that no such application shall be made unless,- (a) the applicant has filed returns showing production, clearance and central excise duty paid in the prescribed manner; (b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant; (c) the additional amount of duty accepted by the applicant in his application exceeds thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether on the date of making of the application, there was a case relating to the Petitioner. Section 31 (c) of the CEA defines case as under: 31(c) case means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, pending before the adjudicating authority on the date on which an application under sub-section (1) of section 32E is made: Provided that when any proceeding referred back by any court, Appellate Tribunal or any other authority, to the adjudicating authority for a fresh adjudication or decision, as the case may be, then such proceeding shall not be deemed to be a proceeding pending within the meaning of this clause. 12. It is clear from a conjoint reading of Sections 31 (c) and 32E of the CEA, that if any proceeding is pending before the adjudicating authority on the date on which the application under Section 32E is filed, the said application would be maintainable, subject to the fulfilment of the other requirements under Section 32E of the CEA. 13. The consideration of the Settlement Commission whether to proceed with or reject an application filed before it, as contemplated under Section 32F (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order-in-original was despatched from the office of the adjudicating authority (in this case, the Commissioner of Central Excise Customs, Ghaziabad). As we have seen, the order-in-original dated 24.12.2009 had left the office of the said Commissioner on 31.12.2009 and was beyond his reach and control. Consequently, the adjudication becomes effective and complete on that date, i.e., 31.12.2009. That being so, the necessary pre-condition of a case pending adjudication on the date of the settlement application is not satisfied. As such, the Settlement Commission had no jurisdiction to entertain the plea of settlement. Because, it is only a case as defined in Section 31(c) which could be the subject matter of settlement. Section 31(c) defines case to mean any proceeding for the levy, assessment and collection of excise duty, pending before an adjudicating authority on the date on which an application under Sub-section (1) of Section 32E is made . Once, the order leaves the hands of the adjudicating authority in the sense explained above, the 'case' can no longer be said to be pending before him. Conversely, the proceeding would be regarded as pending before an adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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