2009 (8) TMI 461 - HC - Central Excise

Order of settlement commission- the petitioner has challenged the order dated 12-7-04, passed by the Settlement Commission. Held that- We find that the annual capacity of the furnace has been determined by the authorities. The liability of duty was admitted and in fact had been paid. Thus by making the application, there was no fresh discloser of the liability for duty. In the application which has been filed as Annexure A2 to the writ petition, we find that no such discloser of any fresh duty liability has been made. We may mention here that the Settlement Commission has to proceed on the basis of the fact stated in the application of the petitioner and not on the facts which has not been stated before in the writ petition. The Settlement Commission was, therefore, right in rejecting the application. The order does not suffer from any illegality. The writ petition fails and is dismissed.

Summary

Issues: Challenge to order of Settlement Commission rejecting application for redetermination of duty liability based on factory production capacity.

Analysis:
1. The petitioner challenged the order dated 12-7-04 passed by the Settlement Commission, Customs and Central Excise, Principal Bench, New Delhi, rejecting the application for redetermination of duty liability based on factory production capacity.

2. The petitioner argued that the Settlement Commission misdirected itself by rejecting the application. The petitioner's factory had lower actual production than the capacity determined by the Commissioner. Despite opting for payment of Central Excise Duty under Rule 96ZO(3), the petitioner applied for redetermination of duty liability based on actual production.

3. The counter-affidavit filed by the Assistant Commissioner Central Excise Division stated that a previous application for redetermination had been rejected in 2000. Under Section 32E of the Central Excise Act, an application for settlement can be filed for a full and true disclosure of duty liability not previously disclosed.

4. The authorities had determined the annual capacity of the furnace, and duty liability was admitted and paid. The Settlement Commission found that there was no fresh disclosure of duty liability in the application. The Commission must base its decision on the facts presented in the application, not on undisclosed facts.

5. The Settlement Commission was justified in rejecting the application as there was no new disclosure of duty liability. The order was deemed legal, and the writ petition challenging it was dismissed.

6. In conclusion, the petitioner's challenge to the Settlement Commission's order was unsuccessful, and the application for redetermination of duty liability based on factory production capacity was rejected.