2022 (5) TMI 1251 - HC - Service Tax

Revival of abated proceedings - matter travelled before the Settlement Commission, but due to lack of Coram, the Settlement Commission, could not decide the case within the time frame prescribed under Sub-section (6) of Section 32F and stood abated - HELD THAT - The Settlement Commission, could not have adjudicate upon the issue referred to or sought to be referred to by the petitioner, by an order dated 5th March, 2020, passed by this Court, admittedly, it stood abated and consequent to which, the impugned order of 2nd March, 2022, has been passed, whereby, it had been observed, that as per the implications of Section 83 of the Finance Act, 1994, and as an effect of abatement under Section 32F (6), the proceedings are to be relegated back to be decided by the Adjudicating Authority. The Adjudicating Authority, who has been conferred with the power to decide the case, exercises its power and procedure of adjudication under Section 11-A of the Act, which itself is a self inbuilt mechanism, where a case of the petitioner has to be decided as per the procedure contemplated under Section 11-A. This Court is of the view that there cannot be a revival of an abated proceeding, which had been abated by operation of law, by giving a judicial verdict to revive abated proceedings, before the Settlement Commission. Though there are various apprehensions expressed by the petitioner, but it is too premature stage to consider any consequential action, which may be punitive in nature to be taken, or which could be a ground for the petitioner to carve out an exception for him to permit him to avail his recourses before the Settlement Commission by overriding the effect of the abatement, as a consequence of the legal implications of Sub- section (6) of Section 32F - Petition dismissed.

Issues:
1. Petition against show cause notice and refund sought.
2. Petitioner withdrew Writ Petition to approach Settlement Commission.
3. Settlement Commission unable to decide within time frame, proceedings abated.
4. Adjudicating Authority to decide as per Section 11-A.
5. Petitioner sought to relegate matter to Settlement Commission.
6. Court's apprehension on reviving abated proceedings.
7. Premature to consider punitive actions, petitioner's recourses protected.
8. Order dated 2nd March, 2022, left open for adjudication by Adjudicating Authority.
9. Exception to relegate to Settlement Commission not available, petitioner's conduct considered.

Analysis:

1. The petitioner initially filed a Writ Petition against a show cause notice and sought a refund. Subsequently, the petitioner withdrew the Writ Petition to approach the Settlement Commission under Chapter-V of the Central Excise Act, 1944.

2. Due to a lack of Coram, the Settlement Commission could not decide the case within the prescribed time frame, leading to the automatic abatement of the proceedings, which were then relegated back to the Adjudicating Authority as per the provisions of Section 32F(6) of the Act.

3. The Settlement Commission was unable to adjudicate on the issue referred by the petitioner, and the matter was passed back to the Adjudicating Authority, which exercises its power under Section 11-A of the Act to decide the case.

4. The petitioner attempted to have the matter relegated back to the Settlement Commission, but the Court decided that once proceedings have abated under Section 32F(6), they must be revived from the stage of the Adjudicating Authority as intended by the provisions.

5. The Court expressed apprehension about reviving abated proceedings through a judicial verdict to relegate them to the Settlement Commission, emphasizing the need to follow the statutory provisions and procedures.

6. It was deemed premature to consider punitive actions at that stage, with the petitioner's recourses protected under the statute through the right of appeal and second appeal after a decision by the Adjudicating Authority.

7. The order dated 2nd March, 2022, was left open for adjudication by the Adjudicating Authority, and the Court concluded that the exception to relegate the matter to the Settlement Commission was not available to the petitioner based on their conduct and the statutory provisions.

8. The Court dismissed the Writ Petition, stating that the order of 2nd March, 2022, relegating the petitioner to the Adjudicating Authority was within the ambit of powers under Section 32F(6) and had to be decided as per Section 11 of the Central Excise Act, 1945.

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