Third application allowed under Central Excise Act despite penalty. Court dismisses writ petition.

The High Court of Allahabad, in a case challenging an order of the Customs & Central Excise Settlement Commission, held that a third application was not barred under Section 32-O(1) of the Central Excise Act, 1944. The Court determined that since the penalty in the previous order was not imposed for concealing duty liability particulars but for other reasons, the application was not prohibited. The Court dismissed the writ petition, finding no merit in the petitioner's argument.

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Issues:
Challenge to order of Customs & Central Excise Settlement Commission on the ground of being a third application barred by Section 32-O(1) of Central Excise Act, 1944.

Analysis:
The judgment delivered by the High Court of Allahabad, with Sudhir Agarwal and Kaushal Jayendra Thaker, JJ., addressed the challenge to an order of the Customs & Central Excise Settlement Commission. The issue at hand was whether the order, being a third application, was barred by Section 32-O(1) of the Central Excise Act, 1944. The petitioner contended that since a previous order had imposed a penalty on the assessee, the subsequent application should be considered barred under Section 32-O(1). However, the Court noted that Section 32-O(1) would only apply if the penalty was imposed due to concealment of duty liability particulars. The Commission's earlier order explicitly stated that the applicant had made a full and true disclosure, cooperated in settlement proceedings, admitted the entire duty liability, and paid the same along with interest. Consequently, the penalty in the previous order was not due to concealment of duty liability particulars but for other reasons.

The Court emphasized that since the penalty was not imposed for concealing duty liability particulars, the third application could not be deemed barred under Section 32-O(1) of the Act. The petitioner's counsel failed to demonstrate that the Settlement Commission had ever imposed a penalty on the assessee based on the concealment of duty liability particulars, thereby failing to substantiate a contradiction with Section 32-O(1) of the Act. Consequently, the Court found no merit in the petitioner's arguments and dismissed the writ petition challenging the Commission's order.

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