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TMI Blog2003 (3) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... to the projects financed by the said United Nations or an International organization and approved by the Government of India. Based on intelligence gathered, the officers of Regional Unit of the Directorate General of Central Excise Intelligence, Bangalore visited the applicant s unit on 18-12-2001 and verified the records. As a result, it was found that the applicant had cleared transformers to M/s. Transmission Corporation of Andhra Pradesh Ltd. (APTRANSCO) availing the benefit of the Central Excise Notification mentioned above. Perusal of the records revealed that APTRANSCO had issued a Purchase Order dated 30-9-2000 ordering for supply of transformers to WS Industries (India) Ltd., Bangalore and subsequently in their letter dated 6-4-2001, they transferred the above Purchase Order to the applicant. In the certificate issued by the Chief Engineer, he had stated that the project was financed through loan by M/s. JBIC. As JBIC was not notified as an International Organisation u/s. 3 of UN (Privileges and Immunities) Act, 1947, the Revenue alleged that the applicant was not entitled to the benefit of the above notification. The project authority had also cancelled the aforesaid ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submissions made on 17-1-2003 and he also drew attention to the written submissions filed along with their letter dated 10-2-2003. The Respondent initially submitted a report in their letter C. No. V/76/ 15/91/2002 ADJN. BNG II, dated 23-12-2002 and another report in their letter under the same reference but dated 4-2-2003. 5. The Bench has considered the oral and written submissions of both the parties. The issue revolves around the interpretation of the provisions in clause (c) u/s. 31 of the Act. As per this clause, case means any proceeding under the 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 CEO or Central Government on the date on which an application under sub-section (1) of Sec. 32 E is made. The main thrust of the Advocate for the applicant is that the condition pendency of the proceedings is attached to the second part of the definition i.e., a condition attached only to the appeal or revision proceedings and not otherwise. In the written submissions dated 10-2-2003, it is further submitted that the enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no appeal was filed as on date and has preferred this application before the Settlement Commission. 7. A cogent reading of the meaning given to the word case under clause (c) of Sec. 31 of the Act does not warrant an interpretation as the Advocate for the applicant would want us to make. The punctuation marks being only a comma, the condition of pendency of the proceedings before a CEO or Central Government is a condition attached to the original as well as the appellate and revisionary proceedings. We find that on a similar plea raised before the Principal Bench of the Settlement Commission by the Advocate for the applicants namely, M/s. Shivalya Trading Corporation and M/s. Shivalya Spinning and Weaving Mills, Ludhiana, the Principal Bench had occasion to go in detail into the above issue before concluding that the condition of pendency is attached to the proceedings before the original and appellate and revisionary authorities in their Order Nos. A/24-25/CUS/2001-SC (PB), dated 9-10-2001 = 2001 (134) E.L.T. 829 (Sett. Comm.). With respect we would like to reproduce the relevant paragraphs from the said order as that would meet the arguments raised before us :- During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to settle all cases where appeal has not been filed before-the Tribunal and the period of appeal has not expired. It is also submitted that under the Income-tax Act for a similar provision under Section 245-A(b), there do not seem to be any direct or conclusive case law in a case where the appeal period has not expired. It is submitted that though there is a comma (,) between the word ; collection and the word which at the end of the second part of the definition; it is settled law that punctuation may have its use in some cases but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text. The comma (,) before the word which has been used in order to avoid any confusion whether it applies to Appeal or Revision or both. The advocate relied on the commentary at pp.136, 137 and 339 to 341 of Principle of Statutory Interpretation by Justice G.P. Singh in support of his aforesaid submissions. It is sought to submit by the applicant that in so far as the first part of the definition of the term case is concerned, it should not be given a restricted meaning having regard to the purpose and objective of setting up the Set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndency of a proceeding before the income-tax authority is an important condition. At any stage of such proceeding the applicant can make an application to the Commission for settlement of his case . (Emphasis provided) Again another Special Bench of the IT WT Settlement Commission in the case of Gulraj Engineering Construction Company - 1995 (79) Taxman 463 observed as follows : The scheme of settlement permits an assessee to make an application for settlement of his case to the Commission at any stage of pendency of proceedings concerning the assessment or reassessment of his income in view of sub-section (1) of Section 245C read with clause (b) of Section 245A of the Act...... (Emphasis provided). The Hon ble Supreme Court, in the case of CIT v. Express Newspapers - 1994 (206) ITR 443 - while dealing with the provisions of Section 245A relating to the definition of the term case observed as follows : case for the purpose of this Chapter thus means a proceeding relating to one or more assessment years. It takes in proceeding for assessment or reassessment. Similarly, it may be a proceeding pending at the stage of assessment or in appeal or revision . (Emphasis provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is connection that the amended provisions of Sec. 11B would apply to all pending proceedings notwithstanding the fact that the duty may have been refunded to the petitioner/plaintiff pending the proceeding or under the orders of the Court/Tribunal/Authority or otherwise and further that where the refund proceedings have finally terminated in the sense that the appeal period has also expired as on 19th September, 1991 [when the 1991 (Amendment) Act came into operation], they cannot be reopened and/or governed by Sec. 11B(3) as amended. In short, the Hon ble Court held the right to refund as not affected by the amended Section 11B in cases where the refund proceedings have finally terminated and it is in this context that the Hon ble Court referred to the non-expiry of the appeal period. The ratio arising out of this observation, to our mind, does not apply to the case under consideration before us where the pendency of the proceedings has relevance to whether the dispute between the applicant and the Revenue continued or has been finalized with the issue of the order of the adjudication by the Commissioner. This ruling in Para 99(xi) has been made in a different context. Same is the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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