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TMI Blog2003 (8) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... n the factory premises of the applicant and the applicant informed the fire accident to the Central Excise Department. On 9-7-98, the officers of Directorate General Anti-Evasion, Central Excise, New Delhi visited the factory premises of the applicant and conducted search of the said premises and also their head office besides carrying out search in the premises of a dealer of the applicant. From the premises of the dealer Terry Towels of cotton worth Rs. 2,03,320/- were first detained and later on seized. After further investigation, a Show Cause Notice dated 12-2-99 was issued to the applicant by the Dy. Director, Directorate General of Anti-Evasion, New Delhi alleging that the applicant had clandestinely removed Terry Towels from its 100% EOU without payment of Central Excise Duty. The SCN proposed to demand duty of Rs. 16,32,161/-, besides proposing penalty under Rules 9(2), 173Q and 209 of the erstwhile Central Excise Rules, 1944 and Section 11AC of the Central Excise Act, 1944 (Act, for short) and confiscation of the Terry Towels seized. Interest @ 20% under Section 11AB of the Act has also been demanded. The said notice was adjudicated by the Commissioner Central Excise, Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lars of such excisable goods in respect of which he admits short-levy on account of misclassification or otherwise of such excisable goods, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided : .................................... .................................... Section 31(c) .- "case " means any proceeding under this Act or any other Act for the levy, assessment and collection of Excise duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before a Central Excise Officer or Central Government on the date on which an application under sub-section (1) of section 32E is made : .................................... ...................................." 6. For admission of an application, the requirements under sub-section (1) of Section 32E are to be satisfied. Similarly, the application must be with reference to a "case" as defined in Section 31(c) and in respect of pending proceedings. As per the meaning assigned to "case" in Section 31(c) of the Act, the case must be for the levy, assessment and collection of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd one cannot be a substitute for the other, and whereas all the three go to raise the tax. The meaning of 'case' as given in Section 31(c) refers to all the three functions namely levy, assessment and collection of excise duty taken together as a whole. Similarly, the Advocate has relied on a judgment of the Supreme Court in A.N. Laxman Shenoy v. Income Tax Officer - AIR 1958 Supreme Court 795. This is a judgment in the context of interpreting Section 13(1) of the Finance Act, 1950, wherein also the Apex Court have held (vide Para 14), that "the collocation of words "levy, assessment and collection" indicates that what is meant is the entire process by which the tax is ascertained, demanded and realised". They have also held that the three expressions are of the widest significance and embrace in their broad sweep all the proceedings for raising money by the exercise of the power of the taxation. It is not as though the court have held that any one of these three functions is a substitute for the other. In Kantilal Popatlal v. State of Gujarat - AIR 1966 Gujarat 268 and Pioneer Silk Mills Pvt. Ltd. v. Union of India - 1995 (80) E.L.T. 507 (Del.) relied by the Advocate, the Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have held that the intention of the statue has to be derived from the context. Chapter V has been incorporated in the Act to enable settlement of tax disputes especially in complicated and doubtful cases. Judged from the above, it is clear that a settlement can be sought when a dispute related to levy, assessment and collection is pending in respect of fresh disclosure made in the Settlement Application. In other words, the Settlement should result in settling duty liability not disclosed before the Jurisdictional Officer. This is clear from the conditions prescribed under clause (c) under first proviso to sub-section (1) of Section 32E of the Act which requires an applicant to make disclosure of additional amount of duty exceeding Rs. 2 lacs. It is also relevant to set out here that if the context so requires and in the interest of harmonious construction, the word "or" can be read as "and". It is felt expedient to reproduce the following extract from the judgment of the Hon'ble Supreme Court in Municipal Corporation of Delhi v. Tek Chand Bhatia - AIR 1980 SC 360. ""And" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undo a thing confirmed even by the Supreme Court. The Bench also finds force in the argument of the Revenue that the words 'recovery' and 'collection' are different and that 'collection', follows levy and assessment, while recovery action is taken where the assessee fails to pay the duty assessed. As rightly contended by the Revenue, if recovery proceedings are treated as pending proceedings for levy and assessment, then no order will ever reach finality. The Revenue's reliance on the order passed by this Bench in M/s. Ideal Exports, Aligarh is also apt.
12. The Bench therefore, concludes that the application does not contain any dispute relating to levy and assessment to Central Excise Duty nor does it contain any fresh disclosure requiring settlement by the Bench. What is pending is just recovery of duty already assessed and confirmed even in appeals. Hence, the application does not satisfy the meaning of "case" as given in Clause (c) of Section 31 of the Act. As such the application cannot be allowed to be proceeded with and accordingly is Rejected in terms of sub-section (1) of Section 32F of the Central Excise Act, 1944. X X X X Extracts X X X X X X X X Extracts X X X X
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