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TMI Blog2009 (6) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... listed on board. We have heard the COD Application No. 503 of 2009 also along with stay applications 3. It is the case of the applicants that since the applicants were pursuing remedy of settlement before the Settlement Commission in terms of provisions of law comprising under Central Excise Act, 1944 there was delay in filing the present appeals. 4. Placing reliance in the decision of the Tribunal in the matter Atma Tube Product Ltd. v. CCE, Chandigarh reported in 2007 (219) E.L.T. 398 (Tri.-Del.) and referring to the facts of the case, the learned advocate appearing for the applicants submitted that the settlement application in terms of the provisions of the said Act was filed on 16th March 2007. While the said application was pending before the Commission, the matter in question was disposed of by passing the impugned order on 7-4-07. The said fact was brought to the notice of the Settlement Commission on 14th of June, 2007 and thereafter on 15th June 2007 the application filed by the applicant before the Settlement Commission was admitted and consequently Settlement Commission acquired exclusive jurisdiction in relation in the matter in terms of provisions compris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts of this case and the delay is required to be condoned. 6. The chronology of events referred to in the course of arguments by the learned advocate for the applicant is not in dispute. 7. The Section 32(E)(1) of the said Act provides that in addition to the powers conferred on the Settlement Commission under Chapter V of the said Act, the Commission shall have all powers vested in Central Excise Officers under the said Act and Rules made thereunder with reference to the case referred to it. However, such jurisdiction is acquired by the Settlement Commission pursuant to the proceedings initiated in terms of Section 32(E). Section 32(E)(I) provides that an assessee, at any stage of a case relating to him make an application before the Settlement Commission to have the case settled in any such form and any such manner as may be prescribed and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing) that, for the proper disposal of the case pending before it, it is necessary or expedient to reopen any proceeding connected with the case but which has been completed under this Act before the application for settlement under Section 32E was made, it may, with the concurrence of the applicant, reopen such proceeding and pass such order thereon as it thinks fit, as if the case in relation to which the application for settlement had been made by the applicant under that Section covered such proceedings also. It is not the case of the applicants that at any point of time in the matter in hand the applicant had approached the Settlement Commission for exercise of such power under Section 32H. The order of adjudication was passed by the competent authority much prior to the filing of the application under Section 32E by the applicants. It is true that the order was communicated to the applicant after such application was filed. However, the fact remains that after disposal of the settlement proceedings on 1st January, 2008 the applicants had approached the Hon'ble Bombay High Court under Writ Petition No. 1173 of 2008 and thereafter the High Court held that - "1. Heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, 2008 of the Settlement Commission. Once the order dated 1st January, 2008 is declared to be non-est, then question of merger of earlier order in an order which might have pronounced in non-est proceedings does not arise. 11. The contention that pursuant to withdrawal of the application, the Commission ought to have transferred the proceeding to the Central Excise Officers is also without any substance. As already noted above the question of exercising of powers under Section 32L by the Settlement Commission can arise only in case of non-cooperation of the applicants in the proceedings before it and not otherwise. Besides the proceedings before the Settlement Commission had been declared non-est by the High Court, the question of Settlement Commission exercising the powers in relation to the matter in question cannot arise. It is also pertinent to note that while passing the order by the High Court, the applicant did not make any request for direction to the Commission to forward the proceedings before it to the Central Excise authorities nor requested for fresh opportunity before the adjudicating authority by setting aside the order of the adjudicating authority. 12.&em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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