9911796707
TMI Blog2006 (4) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... was not paid to the Government. It was alleged that Shri B. Rajagopalan, Senior President; Shri B. Muralidhar, Special Director; Shri A.S. Dumenil, President, and Smt. Subhadra Kunduri, Head, Corporate Planning, Executives of the applicant firm (hereinafter referred to as the "co-applicants"), were instrumental in planning and execution of evasion of duty by the applicant. Therefore, the Show Cause Notice, besides demand of duty, proposes imposition of penalty on the applicant as well as co-applicants and demands interest under the provisions of Central Excise law. 2. On receipt of the Show Cause Notice, the applicant filed a Writ Petition Nos. 4506-07/2005 in the Hon'ble Madras High Court, inter alia, seeking stay of all further proceedings consequent upon the issue of impugned Show Cause Notice. The said WP was pending at the time of filing of application. The applicant, however, approached this Commission for settlement of the case by filing an application dated 30th November, 2005, admitting an amount of Rs. 89,58,603.76. Meanwhile, the Commissioner, Central Excise, Pondicherry, vide Order-in-Original, dated 28-11-2005, confirmed the duty demanded, interest and imposed pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision either actual or constructive is an essential element which must be satisfied before the decision can be said to have been concluded and binding on him. 6. The second point raised by him was that though the Adjudication order had been issued, the collection of duty is pending and that they are entitled to approach the Settlement Commission on this score also. He pointed out the following provision of Section 31 of Central Excise Act, 1944 (hereinafter referred to as "the Act") "(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;" 7. The Advocate pleaded that in view of the clear provisions of the Act, and since the collection of duty levied and assessed is pending, they are free to approach the Commission for settlement of the case. In this connection, he relied upon the decision of the Apex Court in the case of M/s. Gokak Patel Volkart Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to pay the duty in 12 monthly instalments, in view of the applicant's financial position. 10. Revenue representative submitted that a Writ Petition was filed by the applicant before the High Court against the Show Cause Notice issued to them. No Stay order was given; order quashing the Show Cause Notice was also not given against the duty amount of Rs. 2,76,46,994/- demanded in the Show Cause Notice. The applicant had admitted duty liability of Rs. 89,58,603.76/- on the clandestine removals, which took place during 29-3-2000 to 11.3.2002. Therefore, the Revenue representative stated that this case was liable for rejection since the proceedings were pending in High Court as on date. The Revenue, in their earlier submissions had contended that the admission of liability to the extent of Rs. 89,58,603.76 does not amount to disclosure of true and full liability as required under the settlement provisions of the Act, although this is the amount they had collected from their customers. In effect they stated that the applicant is not entitled to the benefits of concessional rate of duty under Notifications 2/95-C.E. and 8/97-C.E., respectively. 11. The Bench asked t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". The application of this rule so far as the aggrieved party is concerned is not dependent on the provisions of the particular statute but it is so under the general law." (emphasis added) Thus, the adjudication order became effective only on 7-12-2005 when it was received by the applicant, by which time, the applicant had already filed the application with the Settlement Commission and as such the "case" was pending before the Central Excise Officer on the date on which the application was made - in accordance with the provisions of law. In this connection, it would be appropriate to quote from the Admission Order No. 11/32001 dated 4-6-2001 of this Bench itself in the case of M/s. Aggarwal Foundries v. Commissioner of Central Excise, Hyderabad-I Commissionerate [2001 (133) E.L.T. 505 (Sett. Comm.)]. In that case also, the Adjudication order was issued when the application for settlement had already been filed with this Bench. The relevant portion of the order is quoted below : "10. In this context, the Bench observes that, admittedly, on the date the application was made, the case was pending adjudication. The fact that the case has since been adjudicated subsequent to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstone Spinning and Weaving Mills Co. Ltd., 1971-SCR-506 = 1978 (2) E.L.T. 399 (S.C.) to drive home the point that levy and collection are two different steps. The relevant portion is cited below: "7. Reference to Section 3 of the Act which contains the charging provision clearly shows that levy and collection and two distinct and separate steps. This Court in N.B. Sanjana, Asst. Collector of Central Excise, Bombay & Ors. v. Elphistone Spinning and Weaving Mills Ltd., 1971-SCR-506-1978 (2) E.L.T. 399 (S.C.) at page 514 stated: .... The charging provision Section 3(1) specifically says "there shall be levied and collected in such a manner as may be prescribed the duty of excise". It is to be noted that sub-section (1) uses both the expressions "levied and collected" and that clearly shows that the expression has not been used in the Act or the Rules as meaning actual collection". 14. In view of the above, the Bench observes that the Advocate has a valid point in stating that as the collection in the case is still pending, the proceedings are not yet complete and the applicant can still approach the Commission for settlement of the case. The application thus deserves adm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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