TaxTMI 
TaxTMI 
2016 (2) TMI 1225
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....2-O(i) of the Central Excise Act, which is reproduced below : "32-O....[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; .......... then, he shall not be entitled to apply for settlement under Section 32E in relation to any other matter." The Commission has no doubt held in paragraph 24 of its order that a penalty of Rs. 6 lakhs was imposed on M/s. Ankit Metal & Power Limited. But it failed to appreciate that this did not prevent Ankit Metal & Power Limited from approaching the Settlement Commission in a second case unless the penalty was inflicted on them, on their making a Section 32E application for settlement and that the ground of imposition of that penalty was concealment of particulars of duty liability. Section 32E enacts in very clear terms that an assessee may in a case relating to hi....
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....ished goods without payment of duty and deposited a sum of Rs. 15 lakhs in advance. According to him, as on an earlier occasion order was passed by the Commission imposing penalty for evasion of duty, the Commission was justified in passing the order dated 28th March, 2014 on the said application for settlement holding it had no jurisdiction to entertain the application under Section 32-O(1)(i) of the Act which the Learned Single Judge in the impugned judgment had overlooked. Moreover in the writ petition the vires of Section 32-O was not under challenge. Had the respondents been aggrieved with the second show cause notice, instead of filing applications for settlement, they should opted for adjudication under the Act. 4. Mr. Sudhir Kumar Mehta, Learned Advocate for the respondents, that is the writ petitioners, submitted that as revenue laws have to be construed strictly and since the Commission in its order dated 28th March, 2014 did not specifically hold that earlier penalty was imposed for concealment of particulars of duty liability, the matter is not barred by Section 32-O(1)(i) of the Act. If imposition of penalty of any kind would have been a disqualification, then in....
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....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 was 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 application has been allowed to be proceeded with under sub-section (1) of Section 32F, such assessee shall not be entitled to apply for settlement und....
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....tion 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, then, he shall not be entitled to apply for settlement under Section 32E in relation to any other matter. 25. .................... 26 .................... 27. .................... 28. Learned Member (Shri Karan K. Sharma) has passed the above order. In addition to the case of M/s. Shakambhari Overseas Trades Pvt. Ltd. [Final Order No. F-412/CE/2014-SC(KB)-REJ, dated 26-3-2014], this Bench has passed another order in the case of M/s. Rohit Ferro-Tech Limited and other co-applicant [Final Order No. F-413/CE-2014-SC(KB)-Rej, dated 28-3-2014] holding that the provisions of Section 32-O(1)(i) are clear and the bar applies in such cases. The bar against filing of subsequent application under Section 32-O(1)(i) is attracted in the present case of M/s. Ankit Metal and Power Limited to make the application of the applicant liable to dismissal. The Bench has no jurisdiction to entertain such an application as it is barred by Section 32-O(1)(i) of the Central Excise Act, 1944 and is liable to dismissal, without go....
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....f of the respondent is unacceptable. 10. With regard to second issue, the argument of the respondent, that with the introduction of sub-section (2) to Section 32-O from 1st June, 2007, which was omitted on 8th May, 2010, the one time approach was removed, cannot be accepted as no earlier application for settlement "identical to the issue" was "pending" before the Commission when the subsequent application was filed. To put the facts in proper perspective, it is to be noted that the Commission had disposed of the earlier application of settlement by order dated 26th November, 2010 by directing the respondents to pay duty of Central Excise. Therefore, as and when the Commission took up the application for settlement for hearing, no "earlier application" on the "identical" issue was "pending" before it. Hence, the Section 32-O(2) since deleted, does not come to the aid of the respondents herein, that is the writ petitioners. 11. So far as the third issue is concerned, as under Section 32-O(1)(i) the bar to file subsequent application was always in vogue, in view of the clear finding in detail by the Commission that in the previous proceedings penalty was imposed for concea....