TaxTMI 
TaxTMI 
2018 (3) TMI 1057
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....ounting to Rs. 30 lacs already paid be not adjusted against the said duty; central excise duty amounting to Rs. 56,251/- be not recovered and an amount of Rs. 56,251/- already deposited be not appropriated against this duty; CENVAT credit of Rs. 57,000/- be not recovered and an amount of Rs. 57,290/- already debited be not appropriated and interest be not recovered from the petitioner. For the purpose of this petition, it is necessary to note that the petitioner was also called upon to show cause why penalty should not be imposed under section 11AC of the 1944 Act and rule 15 of the CENVAT Credit Rules, 2004. The petitioner by its letter dated 25. 05. 2015 informed the Commissioner that it had deposited duty of about Rs. 1. 35 crores along with interest and penalty @ 15% under section 11 AC(d) of the 1944 Act and requested that the proceedings pursuant to the show cause notice be concluded as per the amended section 11AC(d) of the 1944 Act. (B) The petitioner filed an application dated 11. 07. 2015 under section 32E for settlement of the case in respect of the said show cause notice dated 28. 04. 2015. The Customs and Central Excise Settlement Commission by the impugned order da....
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....no application under this sub-section shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986). [(1A)****] [(2)****] (3) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed. (4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant. Section 32F. Procedure on receipt of an application under section 32E. - (1) On receipt of an application under sub-section (1) of section 32E, the Settlement Commission shall, within seven days from the date of receipt of the application, issue a notice to the applicant to explain in writing as to why the application made by him should be allowed to be proceeded with, and after taking into consideration the explanation provided by the applicant, the Settlement Commission, shall, within a period of fourteen days from the date of the notice, by an order, allow the application to be proceeded with, or reject the application as the case may be, and the proceedings before the Settlement Commission shall abate on the date of rejection....
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.... of Central Excise or Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorized in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of Principal Commissioner of Central Excise or the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (3) or sub-section (4). (6) An order under sub-section (5) shall not be passed in respect of an application filed [****] after nine months from the last day of the month in which the application was made, failing which the settlement proceedings shall abate, and the adjudicating authority before whom the proceeding at the time of making the application was pending, shall dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made. Provided that the period specified under this s....
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....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. (ii) after the passing of an order of settlement [xxxx] in relation to a case, such person is convicted of any offence under this Act in relation to that case; or (iii) the case of such person is sent back to the Central Excise Officer having jurisdiction by the Settlement Commission under section 32L, then, he shall not be entitled to apply for settlement under section 32E in relation to any other matter. (2) Omitted. " 3. This petition requires a consideration of the explanation to section 32(O)(1)(i) of the 1944 Act. 4. It is if not admitted clearly established that prior to the settlement application in question, the petitioner had filed a settlement application dated 15. 04. 2013 which was disposed of by an order of the Customs and Central Excise Settlement Commission dated 31. 01. 2014 under section 32F(5) of the 1944 Act. This order inter-alia held that the officer had recovered parallel invoices an....
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....planation to section 32(O)(1)(i) applies, it is clear that the application for settlement dated 11. 07. 2015 which is the subject matter of the present petition is not maintainable in view of the order of settlement dated 31. 01. 2014 having provided for the imposition of penalty on the petitioner in respect of the settlement application dated 15. 04. 2013. In other words, the order of the Settlement Commission dated 31. 01. 2014 having provided for the imposition of a penalty on the petitioner on its application dated 13. 05. 2013 on the ground of concealment of particulars of its duty liability, the petitioner is not entitled to apply for settlement under section 32E in relation to any other matter which would obviously include the settlement application dated 11. 07. 2015 which was disposed of by the impugned order dated 23. 12. 2015. This is clear from the plain language of section 32(O). The explanation to section 32(O)(1)(i) expressly states that the concealment of particulars of duty liability relates to any such concealment made from the Central Excise Officer. Thus, if in the earlier proceedings, the order of the Settlement Commission provides for imposition of penalty ....
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....atutes". The circumstances under which provisions can be termed as "declaratory statutes" are explained by Justice G. P. Singh [Principles of Statutory Interpretation, (13th Edn., LexisNexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: "Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [ W. F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [Ed. : The reference is to Central Bank of India v. Workmen, AIR 1960 SC 12, para 29] : 'For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word "declared" as well as the word "enacted". ' But the use of the words 'it is declared' is not conclusive that the Act i....