TaxTMI 
TaxTMI 
TaxTMI 
2011 (8) TMI 601
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....e stated are that the petitioner M/s. J.R.B. Engineering Works filed a the settlement application in respect of the proceedings initiated vide SCN C.No.IV (Hqrs. Prev.) 12/27/D-II/2005/467 dated 31st March, 2006 issued by the Additional Commissioner, Central Excise, Delhi-II. 3. The Settlement Commission adverted to the various facts and submissions put forth and eventually came to hold that the search was conducted on 20th March, 2006 and the department carried out investigations upon which it transpired that the petitioner was wrongly availing the benefit of SSI exemption. Thereafter, a demand of duty of Rs. 20,59,184.33/- along with interest was proposed and the petitioner was asked to show cause against penal action under Section 11AC ....
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....t the two decisions are of no help to them. 5. Mr. Pradeep Jain, learned counsel for the petitioner contended that the applicant was using brand names owned by the same family and were under the impression that the benefits of the said exemptions for SSI units were available. Learned counsel has invited out attention to paragraph 5 of the decision, which reads as follows:- "5. On a query from the Bench whether the applicant was registered with the Central Excise and had filed returns showing production, clearances and Central Excise duty paid in the prescribed manner in fulfillment of the condition in (a) in the First Proviso to Section 32-E(1) of the Act, the Avocate for applicant submitted that the applicant was manufacturing the....
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....ion whether the petitioners were eligible to benefit of the exemptions available to SSI units even if they were not registered with the Central Excise Department as this could not be considered as satisfying the condition of clause (a) of Section 32E(1) of the Act. The same has been answered in negative. 8. Mr. Pradeep Jain, advocate for the petitioner has submitted that non filing of "returns" cannot be a ground to reject the application for settlement. He relies upon the decision of the Settlement Commission in M/s Emerson Electric Company (supra). Thus, the question that emanates for consideration is whether the condition engrafted under Section 32E(1)(a) of the Act is complied with. The said provision reads as under:- "32E- Applicatio....
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....under the Central Excise Tariff Act, 1985 (5 of 1986)" 9. Referring to clause (a) of Section 32E(1) of the Act in paragraph 11(6) in Emerson Electric (supra), it has been held "(b) Whether a consolidated return filed just before filing the application or along with the application by a person who is not registered with Central Excise and did not obtain ECC Number can be considered as satisfying the condition in Clause (a) of Sec. 32E(1) of the CEA, 1944. Answer No. Though Section 32E(1) does not refer to Rule 12 of the C.E. Rules under which ER1/ER3 returns are prescribed, since the said returns contain details of excisable goods manufactured, cleared and duty paid in the prescribed manner, the said return can be deemed to be the „re....
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....ve that in the consolidated return. He cannot also show at the belated stage and ad hoc quantum of production and clearances merely to be able to show extra disclosure in the application form, as the said ad hoc disclosure would not be truthful at that stage. As a result, a consolidated return filed just before filing the application or along with the application by a person, not registered with Central Excise and not having ECC Code Number, cannot be considered as satisfying the requirement of having filed returns as laid down in Clause (a) of the first proviso to Section 32E(1) of the Central Excise Act, 1944." 10. After so stating, the Special Bench proceeded to state in paragraph 11(c) as follows:- "(c) Can returns filed....