TMI Blog2021 (2) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, before the Settlement Commission, the petitioner had prayed for waiver of late fee as the petitioner was facing the extreme financial constraints. In the alternative, the petitioner prayed for time to pay the late fee. Since the petitioner himself offered to pay the late fee of ₹ 1,28,000/- instead of ₹ 1,66,000/- as was demanded by the respondents, there is no justification in this Writ Petition - Further, under the Scheme of Section 32F of the Central Excise Act, 1944 as made applicable for settling of cases under the Finance Act, 1994, it is to be observed that every order passed by the Settlement Commission is final and conclusive and therefore such orders of the Settlement Commission cannot be interfered. Unless the order passed by the Settlement Commission is contrary to the provisions of the Act, it cannot challenged. The Court while exercising its jurisdiction under Article 226 of the Constitution of India is also not concerned with the correctness or otherwise of the decision arrived by the Settlement Commission or Tribunal whose orders are challenged before it unless there is perversity in the order impugned before it or there was a material irregular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at late fee under Rule 7C of Service Tax Rules, 1994, is for the delay in filing of the returns and since already penalty has been imposed on the petitioner under Section 77(2) of the Finance Act, 1994 for non-filing of the returns in time, late fee under Rule 7C of Service Tax Rules, 1994, cannot be demanded from the petitioner. 5. It is further submitted that even if the petitioner had not filed returns in terms of Rule 7C of Service Tax Rules, 1994, the first respondent Settlement Commission would have entertained the application under Section 32E of the Central Excise Act, 1944 as made applicable to the provisions of the Finance Act, 1994 under Section 83 of the Finance Act, 1994. In this connection, reference is drawn to the language in Section 32E of the Central Excise Act, 1944, which is reproduced below:- 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1994 was unsustainable. 7. The learned counsel for the petitioner drew the attention of this Court to a decision of Division Bench of this Court in Pravin Tex Pvt. Ltd., Vs Customs and Central Excise Settlement Commission, Chennai , (2017) 354 ELT 489 (Mad), wherein, it was held that the Settlement Commission cannot cross the periphery of the Show Cause Notice to impose a duty and that too, at rate higher than, what would could been mandated in law. 8. It is submitted that the Court further held that an Assessing Officer also could not have gone beyond the Show Cause Notice. Therefore, as a logical corollary, if the Assessing Officer could not have gone beyond the Show Cause Notice, the Settlement Commission, in exercise of powers under Section 127C of the Customs Act, 1962, could not have included ADE in the final order passed by it, and that too, at a rate, which adversely, impacted the appellant's financial burden, in the given facts and circumstances. 9. Per Contra, defending the impugned order of the first respondent Settlement Commission, the learned counsel for the respondents placed reliance on the following decisions of the Settlement Commission and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cannot be assailed. 13. The learned counsel for the respondents further submitted that before the first respondent Settlement Commission, the department had contended that the petitioner was liable to pay a sum of ₹ 1,46,000/- as late fee, whereas, the petitioner submitted a statement of working, wherein, it has agreed to pay a sum of ₹ 1,28,000/-. It is further submitted that the first respondent Settlement Commissioner after considering the amendments to the provisions of Section 70 of the Finance Act, 1994 which was amended on 08.04.2011, has rightly held that the petitioner was liable to pay a sum of ₹ 1,46,000/- instead of ₹ 1,28,000/- and ₹ 1,66,000/- as was contended by each of them. 14. The petitioner had agreed to pay late fee, but also submitted that the late fee could not be paid due to extreme final constraints and prayed for waiver of the same or given some more time for payment of late fee. 15. Heard the learned counsel for the petitioner and the respondents. 16. The submission of the learned counsel for the petitioner that late fee was imposed beyond the scope of the Show Cause Notice cannot be countenanced in as much as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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