2015 (5) TMI 660 - HC - Central Excise

Bar under section 32-O(1)(i) of the Central Excise Act, 1944 - incorrect and irregular cenvat credit - Wilful suppression of facts - Held that - There is no dispute about existence of the order passed by the Settlement Commission on 20th December, 2012 to proceed with the application filed by the Petitioners for settlement in respect of show cause notice dated 19th December, 2012. It transpires that the Revenue/Respondents had no objection for the admission of the application to proceed with the same, as the Petitioners had fulfilled the required norms to be eligible to make such an application pursuant to section 32E - it would not be proper to abandon the proceedings much less without putting the applicant on notice about consideration of section 32-O. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Challenge to the order of Settlement Commission declining consideration of the application under section 32-O(1)(i) of the Central Excise Act, 1944.

Analysis:
The petitioners questioned the legality of the order dated 28th July, 2014, where the Settlement Commission declined to consider their application due to a bar under section 32-O(1)(i) of the Central Excise Act, 1944. A show cause notice was issued to the petitioners alleging incorrect cenvat credit availed of in contravention of rules, seeking recovery, interest, and penalties. The petitioners applied for settlement under section 32E of the Act, which was initially accepted by the Settlement Commission. However, the Commission later considered a previous settlement application where the petitioners were penalized, leading to the bar under section 32-O(1) being invoked. The petitioners argued that the impugned order violated principles of natural justice, as they had settled a previous case of misstatement regarding duty payment. They contended that the current case did not involve concealment of duty liability and should not fall under section 32-O(1) of the Act.

The petitioners' counsel vehemently argued that the settlement proceedings followed all prescribed norms, and the decision to proceed should not be altered. They claimed ignorance of any bar being considered after the Commission had already decided to proceed. The counsel asserted that the Commission's consideration lacked basis and that section 32-O did not apply to their case. On the other hand, the respondents contended that the duty payment misstatement amounted to concealment of duty liability, supporting the Commission's decision.

The Court noted that the Commission had already decided to proceed with the settlement application before considering the bar under section 32-O. It was deemed inappropriate to abandon the proceedings without notifying the applicant about this consideration. Therefore, the Court set aside the Commission's order and remanded the matter for reconsideration, emphasizing the need to give an opportunity to all parties and proceed with the application as decided earlier. The rule was made absolute in these terms.