TMI Blog2018 (3) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... t exclude from its ambit cases where penalty is imposed on the person on the ground of concealment of particulars of his duty liability before the Central Excise Officer. The plain language of the section does not warrant an interpretation to the effect that concealment of particulars only before the Settlement Commission and not before the Central Excise Officer is contemplated. The legislative intent is quite clearly to bar a party from making an application under section 32E of the 1944 Act for settlement if he has concealed particulars of his duty liability. It is difficult to appreciate why concealment of particulars before the Central Excise Officer ought to be treated more lightly than the concealment before the Settlement Commission. The Explanation is clarificatory and applies retrospectively. Even absent the Explanation we would interpret Section 32(O)(1)(i) to include the orders of settlement which provides for imposition of penalty on the ground of concealment of particulars of duty liability from the Central Excise Officer - Petition dismissed. - Civil Writ Petition No: 7877 of 2016 - - - Dated:- 19-3-2018 - MR. S. J. VAZIFDAR, CJ. AND MR. AVNEESH JHINGAN, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed a penalty of ₹ 50,000/-. Sections 32 (E)(F) (O) of the Central Excise Act, 1944 read as under:- Section 32E. Application for settlement of cases. - (1) An assessee may, in respect 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, undervaluation, 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Where an application is allowed or deemed to have been allowed to be proceeded with under sub-section (1), the Settlement Commission shall, within seven days from the date of order under sub-section (1), call for a report along with the relevant records from the Principal Commissioner of Central Excise or Commissioner of Central Excise having jurisdiction and the Commissioner shall furnish the report within a period of thirty days of the receipt of communication from the Settlement Commission : Provided that where the Commissioner does not furnish the report within the aforesaid period of 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 enquiry 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing of such order, the provisions of section 32D shall apply. (8) The order passed under sub-section (5) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make the settlement effective and in case of rejection contain the reasons therefore and it shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud or misrepresentation of facts : Provided that the amount of settlement ordered by the Settlement 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) Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner to show cause why goods of the value of about ₹ 19 lacs be not confiscated under Rule 25 of the Central Excise Rules, 2002 and penalty under Rule 26 of the Rules be not imposed upon the petitioner. The order also records that the petitioner had accepted the allegation of clandestine clearance of goods and disputed only the quantum thereof and that the petitioner had accepted the duty liability of ₹ 1. 50 crores out of the total demand of ₹ 2. 02 crores and had also accepted interest of about ₹ 30. 12 lacs on the admitted liability. Mr. Sudhir Malhotra, the learned counsel appearing on behalf of the petitioner relied upon the observations in the order that the petitioner had made true disclosure of its duty liability and cooperated in the proceedings before the Settlement Commission. The operative part of the order of the Settlement Commission recorded that the Settlement Commission settled the case on the terms and conditions mentioned therein namely duty was settled at about ₹ 1. 82 crores. The revenue was granted liberty to recalculate the interest and a fine of ₹ 50,000/- in lieu of confiscation was imposed. The operative part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on the fact that the explanation to section 32(O)(1)(i) was inserted with effect from 06. 08. 2014 whereas the earlier order on the basis of which the present settlement application is dismissed was passed prior thereto on 31. 01. 2014. He submitted that the explanation does not have retrospective effect. 7. It is not necessary to consider whether it can be said that the explanation has retrospective or retroactive effect. The Explanation to section 32(O)(1)(i) was proposed to be inserted by Clause 94 of Bill No. 35 of 2014- a Bill to give effect to the financial proposals of the Central Government for the financial year 2014-15. The Statement of Objects and Reasons with respect to clause 94 of the Finance Bill reads as under:- STATEMENT OF OBJECTS AND REASONS :- The object of the Bill is to give effect to the financial proposals of the Central Government for the financial year 2014-15. The notes on clauses explain the various provisions contained in the Bill. Clause 94 of the Bill seeks to amend clause (i) of sub section (1) of section 32-O of the Central Excise Act so as to insert an Explanation therein to clarify that the concealment of particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language shall be deemed always to have meant is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the preamended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law. The above summing up is factually based on the judgments of this Court as well as English decisions. (emphasis supplied). 9. Further even apart from the Statement of Objections and Reasons, it is clear that the explanation to Section 32(O)(1)(i) is clarificatory. Section 32(O)(1)(i) does not exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X
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