2006 (4) TMI 450 - Commission - Central Excise

Summary

Issues Involved:
1. Admissibility of the settlement application.
2. Pending collection of duty.
3. True and full disclosure of duty liability.

Issue-Wise Detailed Analysis:

1. Admissibility of the Settlement Application:
The applicant, M/s. Marshal Power and Telecom (Ind.) Ltd., filed an application for settlement on 30-11-2005, after receiving a Show Cause Notice (SCN) on 30-9-2004, proposing to recover Rs. 2,76,46,994/- for clearances without payment of duty. The applicant admitted a duty amount of Rs. 89,58,603.76. The Commissioner of Central Excise, Pondicherry, issued an Order-in-Original on 28-11-2005, confirming the duty demanded and imposed penalties, which the applicant received only on 7-12-2005.

The Advocate argued that the application should be admitted as it was filed before the Order-in-Original was communicated, making the case pending before a Central Excise Officer as per Section 32E. The Supreme Court's decision in Collector of Central Excise v. M.M. Rubber Co. was cited, emphasizing that knowledge of the decision by the affected party is essential for it to be binding.

The Bench agreed, noting that the adjudication order became effective only on 7-12-2005, after the settlement application was filed. The case was thus pending before the Central Excise Officer on the application date, satisfying the conditions under Section 32E.

2. Pending Collection of Duty:
The Advocate contended that despite the adjudication order, the collection of duty was pending, allowing the applicant to approach the Settlement Commission. Section 31(c) of the Central Excise Act defines a "case" as any proceeding for levy, assessment, and collection of excise duty pending before a Central Excise Officer.

The Bench referenced the Supreme Court's decision in Gokak Patel Volkart Ltd. v. Collector of Central Excise, which distinguished between levy, assessment, and collection as separate stages. The Bench observed that since the collection of duty was pending, the proceedings were incomplete, and the applicant could still approach the Commission for settlement.

3. True and Full Disclosure of Duty Liability:
The applicant contested the duty demand, denying the concessional rate of duty under Notification 8/97-Central Excise, and admitted a duty amount of Rs. 89,58,603.76, which they had collected from customers. The Revenue representative argued that this admission did not constitute a true and full disclosure as required under the settlement provisions.

The Bench noted that the applicant had made a true and full disclosure of their duty liability by admitting the amount collected from customers. The merits of their claim for the concessional rate of duty would be decided during the final proceedings. The applicant had already paid Rs. 50,00,000/- and was directed to pay the remaining Rs. 39,58,603.76 within 30 days.

Conclusion:
The application was allowed to proceed under Section 32F of the Central Excise Act, 1944. The Settlement Commission assumed exclusive jurisdiction over the case, emphasizing the statutory remedy available to the applicant and the pending collection of duty as grounds for admission.