TMI Blog2018 (2) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances for not filing the returns referred to in sub-clause-(a) to proviso to Section 32E(1), secondly, impliedly, the petitioners have not made true and full disclosure and thirdly, that the case was pending for decision before the CESTAT in an appeal filed by the Revenue. Upon receipt of the application under Section 32E, the Settlement Commission is required to issue notice within seven days on receipt of such application, calling upon such applicant to explain in writing why the application made for settlement should be allowed to be proceeded with - in connection with the hearing, a communication dated 19.12.2014 came to be issued, informing the petitioners about date of hearing on 08.01.2015. In-between, there does not appear to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1. This petition under Article 226 of the Constitution of India is filed for issuance of an appropriate writ for setting aside the order of the Settlement Commission. By the impugned order, the application under the scheme of settlement filed under Section 32 of the Central Excise Act, 1944 came to be rejected. 2. The facts in brief are that the petitioner is engaged in the service of security agency and manpower recruiting agency. It is registered with the Service Tax Department. Pursuant to the premises visited by the officers of the Service Tax Department on 19.02.2013, a show cause notice dated 18.04.2013 came to be issued. It is the case of the petitioner that on account of prevailing fluid situation about applicability of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commission has committed an error in rejecting the application by observing that the petitioners have not deposited the amount declared in their application. It is submitted that in absence of any dispute to the declaration made by the petitioners, non-deposit of fill amount of the disclosure, may not be the ground for rejecting such application. It is submitted that short deposit is attributable to the human error in calculating the service tax and interest thereon and was completely unintentional. It is submitted that in any case, the Settlement Commission ought to have given an opportunity to make good the short payment, which the petitioners, upon realizing the calculation error, would always be ready and willing to deposit. 4. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner regarding the circumstances for not filing the returns referred to in sub-clause-(a) to proviso to Section 32E(1), secondly, impliedly, the petitioners have not made true and full disclosure and thirdly, that the case was pending for decision before the CESTAT in an appeal filed by the Revenue. 6. At the outset, it would be appropriate to refer to the provisions of Section 32F(1), which read as under:- Section 32F. Procedure on receipt of an application under section 32E. - (1) On receipt of an application under sub-section (1) of section 32E, the Settlement Commission shall, within seven days from the date of receipt of the application, issue a notice to the applicant to explain in writing as to why the application m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettlement Commission was moved on 21.01.2014, which was received on the same day (Annexure-B) and the settlement application was listed for hearing on 12.06.2014, wherein the petitioners were represented through their Advocates and the Department was represented through the jurisdictional Commissioner. Thereafter, in connection with the hearing, a communication dated 19.12.2014 came to be issued, informing the petitioners about date of hearing on 08.01.2015. In-between, there does not appear to be any communication with regard to the application before the Settlement Commission. The affidavit in reply on behalf of the Department also does not indicate any proceedings in-between. 8. With regard to the ground regarding pending appeal befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if such liability was discharged later on particularly after the order of Settlement Commission was passed, same would not cure the initial defect of not paying the tax on admitted liability while applying for settlement. Counsel for the petitioner however, submitted that there is nothing in the statute to prevent the petitioner from applying again for settlement by demonstrating that the tax has now been paid and as long as case is pending as defined under the relevant provision, the Settlement Commission would be obliged to entertain such an application. 12. We are not called upon to decide this issue and, therefore, do not make any conclusive observations with respect to this last contention of the counsel for the petitioner. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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