TMI Blog2016 (2) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... on 32-O(1)(i) was always in vogue, the submission in this regard on behalf of the respondent is unacceptable. 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? - Held that:- The Commission had disposed of the earlier application of settlement by order dated 26th November, 2010 by directing the respondents to pay duty of Central Excise. 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 herein, that is the writ petitioners. 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? - Held that:- Under Section 32-O(1)(i) the bar to file subsequent application was always in vogue, in view of the clear finding in detail by the Commission that in the previous proceedings penalty was imposed for concealm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice but before adjudication, to the Settlement Commission to have the case settled. Such application has to be in a prescribed form with full and true disclosure of the applicant s duty liability which has not been disclosed before the Central Excise Officer having jurisdiction. Now, if there is any concealment in that application and a penalty has been imposed by the Settlement Commission on the ground of such concealment, then a second application before the Settlement Commission is barred, in my interpretation of Section 32-O(i) of the said Act. The order of the Settlement Commission does not specify whether this kind of a penalty was imposed on the writ petitioner. Just because a penalty is imposed on a show cause notice the writ petitioner s application before the Commission was not entertained. In that view of the matter, I direct the Settlement Commission to reconsider its order dated 28th March, 2014 in the light of the above observations and if it is found that the penalty has not been imposed on the writ petitioner in an application for settlement under Section 32E, on the ground of concealment of particulars of their duty liability in that application, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concealment of particulars of his duty liability would not have been incorporated. Since ambiguity was set at rest with the introduction of the Explanation to Section 32-O(1)(i) in August, 2014 and as the earlier show cause notice was issued prior to its introduction, the bar under Section 32-O(1)(i) does not apply to the respondent. According to him with the introduction of sub-section (2) to Section 32-O with effect from 1st June, 2007, which was omitted on 8th May, 2010 by Act 14 of 2010, the one time approach was removed and thus even if earlier penalty was imposed for concealment of particulars of duty liability, an application for settlement was maintainable. The Learned Advocate for the respondent had relied on the following judgments :- (1) Sedco Forex International Dril. Inc. v. Commissioner of Income Tax, Dehradun : (2005) 12 SCC 717; (2) B.K. Muniraju v. State of Karnataka : (2008) 4 SCC 451; (3) Commissioner of Income Tax, Jalpaiguri v. Om Prakash Mittal : 2005 (184) E.L.T. 3 (S.C.); (4) Commissioner of C. Ex., Visakhapatnam v. True Woods Pvt. Ltd. : 2006 (199) E.L.T. 388 (Del.); (5) Light Engg. Corporation v. Union of India : 2007 (207) E.L.T. 40 (P H); (6) Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for settlement if the issue in the subsequent application is, but for the period of dispute and amount, identical to the issue in respect of which the earlier application is pending before the Settlement Commission. 8. In order to answer the issues it is appropriate to refer to the relevant portion of paragraph 8 and paragraphs 24 and 28 of the order dated 28th March, 2014 which are as under :- 8. As the applicant had earlier been penalised by Settlement Commission, it appeared that the Bar under Section 32-O(1)(i) is attracted in this case. However, since this Bench had been admitting such applications and setting them in the past, an opportunity was given to the applicants on 17-1-2014 to put forth their defence. During the hearing on 17-1-2014 Shri Kalyan Kumar Biswas, Advocate appeared on behalf of the applicants. The Revenue was represented by Shri B.S. Meena, Assistant Commissioner Shri Kajal Choudhuri, SIO and Shri Mukul Halder, I.O. The Ld. Advocate submitted that : (i) The Hon ble Commission, on earlier occasion(s) granted immunity to the applicants (i) and (iii) above, which is not same as imposition of penalty. (ii) There is no provision for impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut going into the merits of the case, all the applications (main applicant as well as co-applicants) are out rightly rejected and dismissed. 9. So far as the first issue is concerned, it is to be noted that Mr. Mehta Learned Advocate for the respondents in this appeal had submitted that as the earlier show cause notice was issued prior to the introduction of the Explanation by Finance (No. 2) Act, 2014, the bar under Section 32-O(1)(i) is not applicable. The argument made on behalf of the respondent that Section 32-O(1)(i) cannot be accepted, if one looks at the plain language of Section 32E(1) of the Act. The Explanation in Section 32-O(1)(i) stating that the concealment of particulars of duty liability relates to any such concealment made from the Central Excise Officer is in aid to and evidently in consonance with the opening part of the provisions contained in Section 32E(1) which provides 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, 2014 passed by the Commission dealing specifically with the earlier proceedings and the order passed thereon, as noted hereinbefore. Be it noted that the said order, under Section 32M, is conclusive. That apart, as evident from the records, the respondents had accepted the earlier order passed by the Settlement Commission. It is clear from the order dated 28th March, 2014, particularly paragraphs 8, 24 and 28 thereof, that on the earlier occasion the respondent herein was found guilty for concealment of duty particulars and penalty was imposed which the Learned Judge had overlooked and thus erred in passing the judgment under challenge. 12. So far as the decisions relied on behalf of the respondents are concerned, the judgment in Sedco Forex International Dril. Inc. (supra) has no application as the Explanation in Section 32-O(1)(i) is in consonance with Section 32E(1) as even with its introduction there is no change of the existing law. Since it is an admitted fact that on earlier occasion the respondents were found by the Commission to have concealed particulars of duty liability and orders were passed imposing penalty which the respondents had accepted, the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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