TaxTMI 
TaxTMI 
2016 (8) TMI 784
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....e appellant by holding, inter alia, as under:- "9. The applicant has been penalised in an earlier case under an order issued under Section 32F(5) for concealing his duty liability. 11. The provisions of Section 32-O(1)(i) are absolutely clear. It categorically provides that where a penalty has been imposed on a person under Section32F(5), on the ground of concealment of particulars of his duty liability such a person is not entitled to apply for settlement under Section 32F in relation to any other matter. Further, as per the clarification added to Section 32-O in the Union Budget 2014, concealment referred in Section 32-O(1) is with reference to the concealment from Central Excise Officer and not from the Settlement Commission. 12. The Bench has no jurisdiction to entertain such an application as it is barred by Section 32O(1)(i) of the Central Excise Act, 1944 and is liable to dismissal, without going into the merits of the case. The application of the coapplicant cannot also be settled when the main applicant is not eligible to come before the Settlement Commission. In terms of Section 32O(1)(i) of the Central Excise Act, 1944, without going into the m....
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....have abated. As there was no adjudication pursuant to the show cause notice dated 6th February, 2014, the adjudication proceedings stand revived. Hence, the appellant may be granted liberty to pursue the adjudication proceedings before the appropriate authority under the Act. Since the Commission refused to entertain the application for settlement on the ground of lack of jurisdiction and as there was no occasion for the Commission to pass an order of settlement under section 32F(5), the question of applicability of section 32M does not arise at all. Mr. Khaitan has relied on the following judgments in support of his submission:- Hoosein Kasam Dada (India) Limited v. State of Madhya Pradesh: 1983 ELT 1277 (S.C); Jyotendrasinjhi v. S.I. Tripathi: 1993 ITR (201) 611; Cosmic Dey Chemical v. Collector of Central Excise, Bombay: 1995 (75) E.L.T. 721 (S.C.); K.C. Builders v. Assistant Commissioner of Income-Tax: 265 ITR 562(SC); Amrit Foods v. Commissioner of Central Excise, U.P: 2005 (190) ELT 433 (SC); LIC v. R. Suresh : (2008) 11 SCC 319; Jai Jagdamba Malleable (P) Ltd. v. Union of India: 2009(237) ELT 240 (S.C); Union of India v. Rajasthan Spinning & Weaving Mills: 2009 (238) ELT 3(S....
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....iate authority. 6. Before dealing with the issues, it is appropriate to refer to section 32-O(1)(i) and sub-section 2 of section 32 which are as under:- "32-O. Bar on subsequent application for settlement in certain cases.- [(1)] [Where, [***]]- (i) an order of settlement passed under sub-section (7) of section 32F [, as it stood immediately before the commencement of section 122 of the Finance Act, 2007 (22 of 2007) or sub-section (5) of section 32F,] provides for the imposition of a penalty on the person who made the application under section 32E for settlement, on the ground of concealment of particulars of his duty liability; or [Explanation.- In this clause, the concealment of particulars of duty liability relates to any such concealment made from the Central Excise Officer.] then, he shall not be entitled to apply for settlement under section 32E in relation to any other matter. 7. Sub-section 2 to section 32-O, inserted with effect from 1st June, 2007 and omitted with effect 8th May, 2010 is as under:- "(2) Where an assessee has made an application under sub-section(1) of section 32E, on or after the 1st day of June, 2007 and if such....
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....urisdiction to entertain the same since it was barred under section 32-O(1)(i) as in an earlier case the applicants were penalised and order was passed under section 32F(5) for concealing particulars of duty liability. 9. It appears that earlier the appellants, after being served with show cause notice, had applied for settlement and the Commission had passed an order dated 4th January, 2011, the relevant portion of which is an under:- "11. The Bench notes that in the earlier case settled under order no. F- 28/CEX/2005-SC(KOL) dt. 21.11.2005, Shri Chawla, the co-applicant in that case and the co-applicant in this case as well, had informed the Bench that corrective measures had already been taken while assuring that such type of irregularity would not occur in future. The said case was settled at C.E. duty ­8,05,019, being equivalent to the demanded amount, granting full immunity from fine, penalty and prosecution to both the applicants. Thus the applicants appear to be habitual in committing offence and thus they cannot deserve full immunity any further. 12......Taking the above into account and in the facts and circumstances of the case, the Bench settles....
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....d goods have been done in the past by my staff without my knowledge, without cover any duty paying documents, without payment of duty. However, being one of the Directors of the company, I am not disowning the responsibility of such clearnaces and the same may be considered to have been done under my instruction. Admitting our Central Excise duty liability on the same, I hereby deposit Rs. Thirty five lakhs as ad-hoc payment towards payment of Central Excise duty liability. (pages 10-11 of the supplementary affidavit) Q.2 Mr. Chawla in reply to question no 5 you stated that you will check your records and state the reasons for stock taking shortage detected. Mr. Chawla what reasons you like to submit. Ans: There are many reasons for which shortages might have occurred due to burning loss, wrong recording of stock entries, scrap cutting, pilferages, etc. Q.3 Mr. Chawla against the restriction imposed under the Notification 32/2006 CE-(NT) dated 30.12.2006 where in the grounds of appeal you have solemnly affirmed in the Writ preferred what you have stated in your answer to question no.2 Do you stand by this? Ans: Yes, what ever we have sta....
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....no application for settlement "identical to the issue" was "pending" before the Commission when each of the applications were considered. To put the facts in proper perspective be it noted that the Commission had disposed of the first application for settlement in 2005. Subsequently, after notices to show cause dated 24th June, 2010/7th July, 2010 was issued, the appellant on 16th August, 2010 had filed an application for settlement of the dispute relating to duty for the period 20th September, 2008 to 25th September, 2008 which was disposed of by order dated 4th January, 2011, as noted. Again for the dispute relating to the period July, 2012 to April 2013 which is covered by show cause notice dated 6th February, 2014, applications were filed on 27th June, 2014 which was rejected by the Commission on the ground of lack of jurisdiction. Therefore, as and when the Commission took up applications for hearing no other application on the "identical" issue was "pending" before it. As it is explicit, that in the earlier proceedings penalty was imposed for concealment of particulars of duty liability, the Commission was justified in passing the order dated 27th August, 2014 which was right....
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....ghtly passed the impugned judgment, the principles of law laid down in Jyotendrasinjhi (supra) are not applicable to the facts of the case. As we find that the learned Single Judge was justified in holding that "The Settlement Commission adjudicates on the quantum of the demand made by the central excise officer in the light of the quantum admitted and accepted by the assessee to be due from it in respect of the relevant transaction." Implicit in an assessee approaching the Settlement Commission is the admission of the assessee that it had underpaid and that it was liable to pay an additional amount of duty, though the assessee need not submit to the entire amount contained in the demand and may contend that a lesser amount of additional duty is payable than demanded." (page 194 of the stay application) and as the 'Explanation' to section 32-O(1)(i) introduced clarifies the law, the judgments in Hoosein Kasam Dada (supra) and in the Life Insurance Corporation v. R. Suresh (supra) are not relevant. As the appellants after having undertaken not to indulge in irregularities, had subsequently had gone back and indulged in concealing particulars of duty liability and as it is evident fr....