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TMI Blog2007 (7) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... and 84807900 of the First Schedule to the Central Excise Tariff Act, 1985. Based on information that the applicant unit was removing the goods clandestinely without payment of Central Excise duty and without taking Central Excise registration even after crossing the limit of Rs. One crore available to SSI units, the factory premises of the applicant and other concerned premises were searched by the officers of the Central Excise Delhi-I on 13-3-2006 and certain records were resumed. During investigation, statements of Shri Santosh Kumar Sharma, partner of the applicant firm and other concerned persons as well as the suppliers of the raw material to the applicant firm and buyers of the final products of the applicant firm were recorded and documents were scrutinized. Investigation brought out that applicant had suppressed large part of their production without accounting for the same in the statutory records and had not issued any bills or correct bills for actual value of the transactions with intention to remain within the limit of SSI exemption so as to evade the otherwise payable Central Excise duty. Duty evaded in this manner by the applicant during the period 1-4-2005 to 13-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise duty paid in the prescribed manner . The ld. Advocate pleaded that this means that if at the time of filing the settlement application the return stands filed, the requirement of the Clause (a) of the proviso as aforementioned is satisfied for the purpose of admission of the application irrespective of the fact, that no return was filed during the period of dispute. Ld. advocate further stated that an assessees can file a return anytime, say, even after 2 years of the period covered by the return and this delay does not detract from the fact that return stands filed for the period of two years ago. He further argued that in the case of M/s. Rohit Bal Designers P. Ltd. v. Customs Central Excise Settlement Commission (AIT-2007-133-HC), Hon ble High Court of Delhi, had accorded liberty to the petitioner to file its returns for the period of dispute within a period of six weeks from the date of High Court s order and directed that if it is so done, Settlement Commission would consider the application. As against this, applicant s case was even stronger in as much as they have already field the return before approaching the Settlement Commission. He also referred to the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatorily prohibited an application unless the conditions stipulated therein are fulfilled. 8. This issue was also examined by the special five member Bench of this Commission in the case of M/s. Emerson Electric Company (India) Pvt. Ltd. [2005 (189) E.L.T. 377 (Settlement Commission). The Commission had held as under - (b) Whether a consolidated return filed just before filing the application or along with the application by a person who is not registered with Central Excise and did not obtain ECC Number can be considered as satisfying the condition in Clause (a) of Sec. 32E(1) of the CEA, 1944. Answer : No. Though Section 32 E(1) does not refer to Rule 12 of the C.E. Rules under which ERI/ER3 returns are prescribed, since the said returns contain details of excisable goods manufactured, cleared and duty paid in the prescribed manner, the said return can be deemed to be the return referred to in Section 32E(1). Therefore, even if the views of the counsels that clause (a) of the first proviso to Section 32E(1) lays down for filing of returns in the prescribed manner are to be accepted, then too as per Rule 12 of the Central Excise Rules, 2002, returns are to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate duty paid in the prescribed manner (or even in any manner) and question would continue to agitate about the details of production and clearance to be filled in such belated returns. However, in case the applicant had filed monthly/quarterly returns voluntarily, even if late, but before the commencement of any inquiry or at least issuance of a SCN, the position would be different. In the said belated returns filed after getting ECC Code the applicant would be able to Indicate the duty paid by him in the prescribed manner atleast from the date of obtaining the ECC Code, along with production and clearance as desired by him. Such returns can be taken cognizance of for the purpose of Section 32 E(1) of the Central Excise Act, 1944 to allow filing of settlement application. (d) Whether a limited company or partnership firm having two divisions at two different locations, one of which pays duty and files returns and another neither pays duty nor files returns, can be said to have complied with the conditions of filing the returns as per Section 32E(1) of the CEA, 1944. Answer : No. Unlike direct taxes, in the case of excise levy, the registration by an assessee is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E) of the Act is also made clear by the following entries against Sl. Nos. 5 6 of the format of application in Form No. SC(E)-1 prescribed under Rule 2 of the Central Excise (Settlement of Cases) Rules, 2001. These are extracted below: (a) Period/date of the cause/dispute in connection with which the application for settlement is made: (b) Whether monthly returns showing production, clearance and Central Excise duty paid were filed for the period of dispute: 11. It is needles to say that the information so required in the settlement application is regarding the fact whether returns, as prescribed, were submitted for the period of dispute. If, filing of returns for the entire period of dispute had not been a qualifying condition as per Clause (a) of the First Proviso of Section 32E(1) of the Act, the above referred prescribed format would not have asked for this information. 12. Hon ble Bombay High Court s vide its judgment had in the case of Union of India v. Hoganas India Limited [2006 (199) E.L.T. 8 (Bom.)] dealt with the issue pertaining to the fulfilment of the essential requirements for making an application under Section 32E of the Central Excise Act, 1944 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner will file the returns for the period in dispute within six weeks from today. If that is done, the application already filed by the Petitioner before the Settlement Commission will stand revived and should then be considered on merits. Accordingly, liberty is granted to the Petitioner to file its returns for the period in dispute within six weeks from today. If that is done, the Settlement Commission will consider the application of the Petitioner on merits. With this, the writ petition is disposed of. 15. It would thus appear that Hon ble Delhi High Court did not go into the statutory applicability of the relevant Section of the Act and its interpretation, but granted relief in terms of writ jurisdiction to the particular petitioner allowing it to file returns for the period in dispute so that its application can be taken up for consideration on merits by the Settlement Commission. It is also respectfully noted that the aforesaid judgment relied upon the decision of the same Hon ble High Court in the case of M/s. Bharat Industrial Works v. Customs Central Excise Settlement Commission, New Delhi and another in WP (C) No. 5091 of 2003. A perusal of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia) Pvt. Ltd. (supra). In terms of the said decision (relevant paras of which have been excerpted above), it comes out that the applicant in this case does not satisfy the afore-said statutory condition of the law for admissibility of the application. Similar view was taken by this Bench in the Rejection Order No. A-568/CE/07-SC(PB)-R dated 15-2-2007 in the case of M/s. Dadu Aqua Drinks (India) Pvt. Ltd., Delhi and others and Rejection Order No. A-647/CE/07 SC(PB)-R dated 22-2-2007 in the case of M/s. Vichitra Prestressed Concrete Udyog Pvt. Ltd., Rashegaon, Peth Road, Taluka Dindori, District Nasik and others. 19. In view of the above, the contention of the applicant that even though he did not file the returns/declaration during the relevant period but the applications should still be admitted because just before approaching the Settlement Commission, they have filed the returns for the past period is not tenable. Requirements of Clause (a) in First Proviso to Section 32E(1) of the Act are not at all met by the applicants. 20. In view of non-fulfilment of the requirement under Clause (a) in the First Proviso to Section 32E(1) of the Act, the applications are rejected under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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