2017 (9) TMI 1254 - HC - Central Excise

Interpretation of statute - case within the meaning of Section 31 (c) of the CEA - application under Section 32E filed by petitioner - Settlement Commission rejected the application filed by the Petitioner on the ground that the matters stood adjudicated and hence the Petitioner s application was no longer in respect of a case within the meaning of Section 31 (c) of the CEA - whether the Settlement Commission was right in rejecting the applications filed by the Petitioners, filed before it on the ground that there was no case pending in terms of Section 31 (c) of the Central Excise Act, 1944? Held that - an application under Section 32E has to be made before adjudication - It is clear from a conjoint reading of Sections 31 (c) and 32E of the CEA, that if any proceeding is pending before the adjudicating authority on the date on which the application under Section 32E is filed, the said application would be maintainable, subject to the fulfilment of the other requirements under Section 32E of the CEA. In the present case, there is no dispute as to the date of the order passed by the adjudicating authority. The date of the order is 7th December, 2016, though, the date appearing on the order itself is 2nd December, 2016 - There is no cavil to the conclusion that the date of the order in the present case is 7th December, 2016 and the date of the filing of the application before the Settlement Commission is 5th December, 2016. Thus, on the date when the application came to be filed before the Settlement Commission, the proceeding was pending before the adjudicating authority. In the circumstances, the Settlement Commission was in error in holding that the application before it was not maintainable. The applications of the Petitioners are held to be maintainable - petition allowed - decided in favor of petitioner.

Issues Involved:
1. Whether the Settlement Commission was right in rejecting the applications filed by the Petitioners on the ground that there was no 'case' pending in terms of Section 31 (c) of the Central Excise Act, 1944.

Issue-wise Detailed Analysis:

1. Definition of 'Case' and Timing of Application:
The central issue revolves around the interpretation of the term 'case' as defined under Section 31 (c) of the Central Excise Act, 1944 (CEA) and the timing of the application to the Settlement Commission. The court clarified that an application under Section 32E must be made "before adjudication." According to Section 31 (c), a 'case' refers to any proceeding for the levy, assessment, and collection of excise duty pending before the adjudicating authority on the date the application is made.

2. Pendency of Proceedings:
The court emphasized that the crucial factor is whether the proceedings were pending before the adjudicating authority when the application was filed. The court noted that the Petitioners filed their application on 5th December 2016, and the adjudication order by the Commissioner was dispatched on 7th December 2016. Thus, the proceedings were pending on the date of the application.

3. Settlement Commission's Discretion:
The court highlighted that the Settlement Commission's discretion under Section 32F (1) involves more than just verifying the pendency of proceedings. The Commission must also consider whether the application meets other conditions under Section 32E, such as full and true disclosure of duty liability and additional excise duty payable.

4. Date of Adjudication Order:
The court referred to the precedent set in Qualimax Electronics Pvt. Ltd. v. Union of India, asserting that the date of dispatch of the adjudication order is the relevant date, not the date mentioned on the order itself. This principle was reaffirmed by the Bombay High Court in Vishnu Steels v. Union of India. Therefore, the adjudication order's effective date was 7th December 2016, making the Petitioners' application timely.

5. Jurisdiction and Maintainability:
The court concluded that the Settlement Commission erred in rejecting the application based solely on the subsequent adjudication order. The Settlement Commission's jurisdiction becomes exclusive only after it decides to proceed with the application. The application was maintainable as it was filed before the adjudication order was dispatched.

Conclusion:
The court set aside the Settlement Commission's order dated 9th January 2017, holding that the Petitioners' applications were maintainable. The applications were restored to the Settlement Commission for further proceedings from the stage they were at when the impugned order was passed. The writ petitions were allowed, and the applications were scheduled for further proceedings on 6th November 2017.

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