TaxTMI 
TaxTMI 
TaxTMI 
2009 (3) TMI 180
X X X X Extracts X X X X
X X X X Extracts X X X X
....Order-in-Original dated 28-11-2003, stated to be an ex-parte order. The petitioner challenged the same before the Tribunal, and vide order dated 2-12-2004 the matter was remanded back to the adjudicating authority. Pursuant thereto, on 6-10-2005, the petitioner made an application before Settlement Commission under Section 32E of the Central Excise Act, 1944 ("the Act") admitting duty liability to the extent of Rs. 20,65,680/-. The same was revised upwards to the tune of Rs. 31,11,030/-. 3. On 8-5-2006 the application made by the petitioner came to be admitted by Admission Order No. 80/CEX/2006 relatable to the period commencing from 1-4-1998, up to 7-7-2002. 4. In the meantime respondent authority issued a fresh notice of hearing, callin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dingly, we hold that the applicant has failed to co-operate with the Commission in the proceedings and send the case back to the adjudicating authority in terms of Section 32L(1) of the Act. The adjudicating officer shall dispose the case in accordance with the provisions of the Act as if no applications under Section 32E of the Act had been made." 7. The adjudicating authority, thereafter, called upon the petitioner to make payment of duty and penalty along with interest vide communication dated 17-10-2008, followed by communication dated 17-11-2008 and 29-12-2008. According to the respondent authority, the figure of duty liability fixed by the Settlement Commission had attained finality and hence, the petitioner was required to make paym....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on the basis of the order made by Settlement Commission/the order made by the adjudicating authority on 30-10-2005 had to be recovered by the authority in accordance with law. It was submitted that there was no question of any fresh adjudication being required in the aforesaid set of circumstances, and the petitioner was wrongly resisted the recovering proceedings. In support of the submissions made, reliance was placed on decision of Bangalore Bench of Central Excise and Service Tax Appellate Tribunal in the case of Commr. of C. Ex., Visakhapatnam v. Deccan Vaneer P. Ltd. - 2008 (223) E.L.T. 263. 10. The controversy lies in a very narrow compass, as the facts are not in dispute. Provisions of Section 32-L of the Act read as under :- "32....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that under sub-section (1) once the Settlement Commission forms an opinion that any person who made an application for settlement under Section 32E of the Act has not cooperated with the Commission in the proceedings before the Commission, the Settlement Commission may send the case back to the adjudicating authority to dispose of the case in accordance with provisions of the Act, as if, no application under Section 32E had been made. If there is no application before Settlement Commission, there can be no question of any final order of adjudication. When one reads sub-section (3) of Section 32L of the Act, it becomes clear that for working out the time limit prescribed under provisions of Section 11A of the Act for recovery of duties not l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cessary action will be initiated against you as per law." Respondent authority has thus failed to appreciate and understand the distinction between an order made under Section 32F of the Act and an order made under Section 32L of the Act. 13. What is more fatal to the case of the respondent authority is, that the earlier adjudication order dated 31-10-2005 was categorically found by Settlement Commission to be non est in law, as noted hereinbefore, when order of admission dated 8-5-2006 came to be made. The said order of 8-5-2006 made by the Settlement Commission has attained finality, the same having not been challenged by the respondent authority. Thus in effect, in law and on facts, as of date, there is no order of adjudication which c....