TaxTMI 
TaxTMI 
2017 (5) TMI 98
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....the petitioner had made payment of a sum of Rs. 50,00,000/- on 07-08-2015 and Rs. 20,00,000/- on 16-04-2016. Immediately after receipt of the show cause notice, the petitioner also paid the balance of service tax in a sum of Rs. 50,92,847/- on 10-05-2016. 4. It appears that the petitioner also submitted a reply to the show cause notice and participated in the personal hearing. 5. Thereafter, the petitioner decided to go before the Settlement Commission by invoking the provisions of Section 32E of the Central Excise Act, 1944 and hence, sent a letter dated 27-12-2016 requesting the 4th respondent to defer the adjudication to enable them to approach the Settlement Commission. To prove their bona fides, the petitioner also made payment of a sum of Rs. 75,73,898/- on 31-12-2016 towards interest component. The factum of payment of interest was also informed by the petitioner to the 4th respondent by a letter dated 03-01- 2017. 6. However, the petitioner was served on 18-01-2017, with an Order-in-Original dated 24-12-2016 confirming the demand for payment of service tax. It was followed by attempts to take coercive steps. Therefore, contending that their right to approach the Settleme....
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....for filing of an appeal to commence. 13. In fact Section 35 (1), which deals with first appeals to Commissioner (Appeals) and Section 35B (3), which deals with appeals to the Appellate Tribunal, take care of the contingency that an order of adjudication may be passed and kept in the shelf of the adjudicating officer and that the right to file an appeal cannot be defeated by non-communication of the orders of adjudication. Section 35 (1) uses the words from the date of the communication to him of such decision or order. Similarly, Section 35B (3) also uses the words from the date on which the order sought to be appealed against is communicated. Section 35EE, which provides for a revision to the Central Government, also uses the words from the date of communication in sub-section (2). Similarly, Section 35G, which provides for an appeal to this Court, also uses the words the order appealed against is received by the Commissioner or the other party. 14. Therefore, it is clear that wherever the statute deals with a right flowing as against an order of adjudication, the statute used the words from the date of communication or communicated or from the date of communication or the date ....
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....first proviso under Section 32E (1) before amendment has now become the third proviso after amendment. The only area where there was some difference was that the definition of the word case under Section 31 (c) underwent a drastic change by the Amendment Act 22 of 2007. Prior to amendment, the filing of an appeal or revision after the expiry of the period of limitation, was treated to be not a proceeding pending within the meaning of the clause. This was under the proviso to Section 31 (c). But this proviso has now been substituted by a new proviso. 19. Therefore, the question as to whether the assessee would have a right after adjudication does not arise any more, after Amendment Act 22 of 2007. The right is conferred by Section 32E (1) only before adjudication and not after adjudication, at least after Amendment Act 22 of 2007. 20. Mr. S. Vivek Chandrasekhar, learned counsel for the petitioner placed heavy reliance upon the decision of the Bombay High Court in Vishnu Steels v. Union of India (2014) 299 ELT 292. The said decision arose out of very peculiar facts. In the said case, an application for settlement was filed on 14-01-2011, a day after the order of adjudication was pa....
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....nder the Central Excise Act, 1944. One set of rights is placed on fight mode. The other set of rights is placed on settlement mode. At all places where the statute dealt with the rights of the assessees in the fight mode, the statute used the words from the date of communication or from the date of receipt or the date on which it was communicated etc. But while dealing with the rights on the settlement mode conferred upon the assessee, the statute carefully avoided the words date of communication or date of receipt etc., but chose to employ the words before adjudication. That the choice of the language was consciously made with the intention of depriving persons on the fight mode, the right to seek settlement, is made clear by the manner in which Section 32E (1) was amended under the Amendment Act 22 of 2007. As we have indicated earlier, the right to approach the Settlement Commission before the Amendment Act 22 of 2007 was at any stage of the case. After amendment it is only before adjudication. Therefore, the communication or service of the copy of the order of adjudication, gives rise to a different set of rights and it should not be confused with a right to approach the ....