TaxTMI 
TaxTMI 
2006 (9) TMI 188
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.... and were not getting any job work done. It was also found that the noticee illegally availed of Cenvat credit on Copper wire. Certain other violations were also mentioned in the notice. 3.The assessee filed a petition under Section 32E of the Act before the Commission, wherein certain violations were admitted. The commission found that the petitioner was not candid and forthright and disclosure of the liability was not full and true, which was the condition precedent for entertaining an application filed by the petitioner. It was noticed that though, the petitioner took the stand that casting was done on job work basis but failed to furnish names of the job workers. The Commission found that the petitioner was taking varying and conflicting stands. 4.Learned Counsel for the petitioner submitted that the view taken by the Settlement Commission was arbitrary and against the principles of natural justice and the Commission ought to have entertained the application. The Commission failed to notice that the fans have been supplied to the railways. 5.We have heard learned Counsel for the parties. 6.Sections 32E and F of the Act are as under :- "32E.Application for settlem....
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....lement Commission shall call for a report from the Commissioner of Central Excise having jurisdiction and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application : Provided that an application shall not be rejected under this sub-section unless an opportunity has been given to the applicant of being heard : Provided further that the Commissioner of Central Excise shall furnish such report within a period of one month of the receipt of the communication from the Settlement Commission, failing which it shall be presumed that the Commissioner of Central Excise has no objection to such application; but he may raise objections at the time of hearing fixed by the Settlement Commission for admission of the application and the date of such hearing shall be communicated by the Settlement Commission to the applicant and the Commissioner of Central Excise within a period not exceeding two months from the date of receipt of such application, unless the presiding o....
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....y to the applicant and to the Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorised 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 the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (1) or sub-section (6). Subject to the provisions of section 32A, the materials brought on record before the Settlement Commission shall be considered by the Members of the Bench concerned before passing any order under sub-section (7) and, in relation to the passing of such order, the provisions of section 32D shall apply. Every order passed under sub-section (7) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make the settlement effective....
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.... exercise its power of immunization against criminal prosecutions by using its power only sparingly and in deserving cases : otherwise such orders may become vulnerable if properly challenged."(underling supplied). 9.In Commissioner of Income Tax v. Express Newspapers Limited, (1994) 206 ITR 443 (SC), it was observed :- "....It is neither possible nor advisable to seek to lay down exhaustively the several situations in which the Commission would decide to allow the application to be proceeded with or in which the application has to be rejected. A case may be a complex one; it may involve prolonged or cumbersome investigation. Another situation may be where having regard to the nature of the case and other circumstances, the Commission may feel in the interest of the Revenue and in the interest of justice that it is better to give a quietus to the case once for all instead of allowing it to be fought through the usual channels. The decision has to be taken by the Commission having regard to all the facts and circumstances before it, in the light of the object, purpose and scheme of the enactment. It is precisely because such wide discretion is given to the Commission that the ....
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.... mind while deciding whether to allow the application to be proceeded with before it or to reject it." 10.In Ashirvad Enterprises & Others v. State of Bihar & another, (2004) 3 SCC 624, it was observed :- "6. .....reasons are envisaged in CIT v. B.B. Bhattacharjee, (1979) 4 SCC 121, wherein it was observed that Section 245-H is a magnet which attracts large tax-dodgers, and it was emphasized that power of immunization against criminal prosecution should be used in deserving cases. Whether grant of immunity is called for in a given case is to be decided by the Commission on the facts of each case and no straitjacket formula for any universal application can be laid down." 11.In C.I.T v. Om Prakash Mittal, 2005 (2) SCC 751, it was observed :- "16.The foundation for settlement is an application which the assessee can file at any stage of a case relating to him in such form and in such manner as is prescribed. The statutory mandate is that the application shall contain "full and true disclosure" of the income which has not been disclosed before the Assessing Officer, the manner in which such income has been derived. The fundamental requirement of the application under Secti....