2007 (7) TMI 446 - Commission - Central Excise

Summary

Issues Involved:
1. Whether the applicant's settlement applications can be admitted despite not filing returns/declarations during the disputed period.
2. Interpretation of Clause (a) of the First Proviso to Section 32E(1) of the Central Excise Act, 1944.
3. Applicability of judicial precedents cited by the applicant.

Issue-wise Detailed Analysis:

1. Non-filing of Returns/Declarations During the Disputed Period:
The applicant was engaged in manufacturing 'Dies' and 'Moulds' used in footwear production, classified under specific sub-headings of the Central Excise Tariff Act, 1985. The applicant was accused of clandestinely removing goods without paying Central Excise duty and without registration, despite exceeding the SSI exemption limit. The investigation revealed suppressed production and unaccounted transactions aimed at evading duty. The evaded duty amounted to Rs. 13,31,059/-, and the applicant had voluntarily paid Rs. 15,00,000/- during the investigation. The applicant admitted the duty liability but had not filed returns during the disputed period (1-4-2005 to 13-3-2006). The returns were filed only on 14-4-2007, after the issuance of the Show Cause Notice (SCN) on 12-3-2007.

2. Interpretation of Clause (a) of the First Proviso to Section 32E(1) of the Act:
Clause (a) of the First Proviso to Section 32E(1) mandates that an application for settlement can only be made if the applicant has filed returns showing production, clearance, and Central Excise duty paid in the prescribed manner. The Bench noted that the statutory provision is mandatory and imperative, as indicated by the negative formulation "No such application shall be made unless...". The Special Bench of the Settlement Commission in the case of M/s. Emerson Electric Company (India) Pvt. Ltd. held that a consolidated return filed just before or along with the application does not satisfy the condition of Clause (a). Returns must be filed on a monthly/quarterly basis as prescribed, and belated or consolidated returns do not meet the statutory requirements.

3. Applicability of Judicial Precedents:
The applicant cited the Delhi High Court's judgments in the cases of Rohit Bal Designers Pvt. Ltd. and Bharat Industrial Works, arguing that filing returns before approaching the Settlement Commission should suffice. However, the Bench observed that these judgments did not interpret the statutory provisions of Section 32E(1) but provided relief in specific cases under writ jurisdiction. The Bench emphasized that the only decision examining the statutory provision was the Special Bench's decision in Emerson Electric, which clearly stated that returns must be filed in the prescribed manner during the disputed period.

Conclusion:
The Bench concluded that the applicant did not meet the requirements of Clause (a) in the First Proviso to Section 32E(1) of the Act, as no returns were filed during the disputed period. The applications were rejected under Section 32F(1) of the Act due to non-fulfillment of the statutory condition.