TMI Blog2021 (8) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner had not come out with true and full nature of disclosure and in this context, the Settlement Commission formed an opinion that the Commission cannot take on itself the role of Adjudicator. The observations made by the first respondent that the Bench is constrained to believe that the lack of cooperation on the applicant/petitioner emerges as the main cause for the kind of deadlock to this issue. The Commission further proceeded by stating that the Settlement Commission is not the Forum to decide the Bench contentious issues by weighing in the evidence let in by the rival parties to the proceedings and conclude one way or the other. The Settlement Commission has rightly formed an opinion that the disputed issues cannot be adjudicated in an application filed to settle the issues. Thus, the spirit of provision under the Central Excise Act, in the matter of entertaining the application for settlement has been rightly considered by the Settlement Commission and there is no infirmity or perversity as such - The settlement of cases under Section 32E of the Central Excise Act, no doubt, is the right provided to a person. However, such right is contemplated subject to cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a taxable service of 'Commercial Training or Coaching Services' within the meaning of Section 65(27) of Finance Act, 1994 and had issued show cause notice No.73/2006 dated 22.08.2006 for the period between 01.04.2004 to 31.07.2006 and proposed a demand for a sum of ₹ 1,59,27,396/-. 5. The petitioner was a non-profit organisation and had entertained a bona fide doubt that its activities were outside the purview of the taxable service of a 'Commercial or Coaching Centre' during the relevant period. The demand was confirmed by the Commissioner vide O.I.O No.14/2007 dated 30.04.2007. Aggrieved by the order of the Commissioner, the petitioner preferred an appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT), Chennai. 6. The CESTAT, Chennai vide its final order No.11/2008 dated 02.01.2008 set aside the order of the second respondent-Commissioner and dropped the demand. The second respondent preferred an appeal before the Hon'ble Supreme Court of India vide Civil Appeal No.4464/2007. Meanwhile, an Explanation to Section 64(105)(zzc) to the Finance Act, 1994 was inserted vide Section 76(A)(6)(b) of the Finance Act, 2010 with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us documents produced by the petitioner, to establish that the Courses are approved by the AICTE and the said approval was admitted by the respondents also. While-so, there is no reason whatsoever to reject the application by the Settlement Commission and thus, the matter is remanded back for fresh consideration. 14. It is contended that the report filed by the Commission on two occasions not served to the petitioner, to enable the petitioner to respond to the objections raised. This apart, the petitioner with an intention to settle the matter, approached the first respondent and in the event of any doubt, the first respondent ought to have directed the petitioner to clarify the issues, more specifically, regarding the approval of Courses by the AICTE and the exemptions, as applicable under the Act. Without doing so, the Settlement Commission has formed an opinion that the dispute was in existence and therefore, the application cannot be entertained. 15. There was no dispute, in fact, as the approval of Courses by the AICTE was admitted by the respondent themselves. Thus, the order impugned is liable to be set aside as the same is not in consonance with the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. The primary condition stipulated in sub-section (1) to Section 32E of the Central Excise Act, is that the application submitted by the person must contain a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction. 21. Section 32L of the Central Excise Act, provides, power of Settlement Commission to send a case back to the Central Excise Officer. Sub Section (1) contemplates that the Settlement Commission may, if it is of opinion that any person who made an application for settlement under section 32E has not co-operated with the Settlement Commission in the proceedings before it, send the case back to the Central Excise Officer having jurisdiction who shall thereupon dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made. 22. Section 32M of the Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehemently contended and reiterated that the subject Show Cause Notices did not propose any demand of Service Tax in respect of Courses such as PGCM, EPGDM, which are approved by AICTE and therefore the entire demand is sustainable. Further, the department also contested the relief sought by the Applicant to treat the consideration as cum-tax in the absence of worksheet supported by records for verification by the Revenue. This is despite the fact that during the Course of hearing on 19.07.2016, the Department representative clearly pointed out and submitted that the Show Cause Notices have not demanded service tax on Courses which have been approved by the AICTE. The Applicant has not effectively countered it in spite of applicant being provided with ample opportunities. The question whether the Show Cause Notices have included in its ambit or not is simply a question of fact and the same could have been easily sorted out by producing all the evidences showing factual position and quantification of disparity. The Applicant seems to have totally failed on this account clearly evidencing lack of cooperation and absence of true spirit of settlement. Unless applicants cooperate and com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been enunciated by the Hon'ble High Court of Bombay in the case of Amrut Ornaments reported in 204 (305) ELT 365 (Bom.), and by the Hon'ble Delhi High Court in the case of Union of India vs. Dharampal Satyapal as reported in 2013 (298) ELT 653 (Del.), by the Hon'ble Allahabad High Court in the case of Vinay Wire Poly Product P. Ltd vs. Director General of Central Excise Intelligence reported at 2014 (307) E.L.T 438 (AII) and also by the Hon'ble Madras High Court in the case of Australian Foods Ltd vs. Commissioner of Central Excise, Chennai II reported in 2012 (254) E.L.T. 392 (Mad.). 10.11 In view of the foregoing discussions, the Bench observes that the case is not one that can be settled in this forum in view of rival claims on facts, leading to total contradiction and confrontation on facts, which are essential for settling this case. The Bench observes that the issue of analysing the facts and consequently determining the tax liability or otherwise of services merely on the basis of claims made by the applicant vis-a-vis the counter claims made by the department cannot be decided in this Forum as in an adjudication proceeding. Bench for the reasons ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth mentioning that Hon'ble Settlement Commission vide Para 10.3 by the order observes The department also contested the relief sought by the Applicant to treat the consideration as cum-tax in the absence of worksheet supported by records for verification by the Revenue. This is despite the fact that during the Course of hearing on 19.07.2016, the Department representative clearly pointed out and submitted that the Show Cause Notices have not demanded service tax on Courses which have been approved by the AICTE. The petitioner has not effectively countered it in spite of petitioner being provided with ample opportunities. The question whether the Show Cause Notices have included in its ambit or not is simply a question of fact and the same could have been easily sorted out by producing all the evidences showing factual position and quantification of disparity. The petitioner seems to have totally failed on this account clearly evidencing lack of cooperation and absence of true spirit of settlement. From the above it is amply evident that it is only the petitioner who acted in an unfair manner leading to the rejection of their application by the first respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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