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TMI Blog2011 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said exemptions for SSI units were available - Held that: - the order passed by the Settlement Commission is absolutely defensible and there is no warrant to interfere with the same - W.P.(C) 289/2007 - - - Dated:- 2-8-2011 - Dipak Misra, Sanjiv Khanna, JJ. Pradeep Jain and Shubhankar Jha, Advs. for the Petitioner Ashwini Bhardwaj, Adv. for the Respondent JUDGMENT Dipak Misra, Chief Justice 1. Being dissatisfied with the rejection order dated 18th October, 2006 passed by the Settlement Commission in Settlement Application No.1269/2006, the petitioner has preferred this writ petition under Articles 226 and 227 of the Constitution of India for setting aside the same. 2. The facts which are requisite t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanical Works and that the petitioner had defaulted in paying duty all along on the said goods and for obtaining registration for the same as mandated by clause (a) to Section 32E(1) of the Central Excise Act, 1944 (Act, for short). Being of this view, the Commission has held that the application does not conform to the parameters as stipulated under Section 32E (1) of the Act. Be it noted, before the Commission reliance was placed on the decision of the Special Bench of five members rendered in M/s Emerson Electric Company India Pvt. Ltd. 2005 (189) ELT 377 (Settlement Commission) and on M/s JMD Beverages Pvt. Ltd, New Delhi AO No. A 466/CE/06-SC (PB) dated 9th June, 2006. The Settlement Commission however held that the two decisions are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not eligible to benefit of the aforesaid exemptions for SSI units in respect of the goods of the brand name 'Kalsi' which was owned by another person i.e. M/s Kalsi Mechanical Works. The applicant was required to pay duty all along on the said goods and obtain registration and submit returns. They had defaulted on all the counts. In the circumstances, the two orders of the Settlement Commission cited by the applicant are of no help to them. The Bench observes that the applicant do not fufil the requirement as per clause (a) of the first proviso to Section 32-E(1) of the Act." 7. On a careful reading of the aforesaid paragraphs we find that the Commission had posed the question whether the petitioners were eligible to benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion shall be made unless- (a) The applicant has filed returns showing production, clearance and Central Excise duty paid in the prescribed manner. (b) A show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant; and (c) The additional amount of duty accepted by the applicant in his application exceeds two lakh rupees: Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending with the Appellate Tribunal or any Court: Provided also that no application under this sub-section shall be made for the interpretation of the classification or exciseable goods under the Central Excise Tariff Act, 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the applicant is to file a consolidated return belatedly without ECC Number, and covering more than one month, such return cannot, naturally, contain the details of any duty paid in the prescribed manner, as no duty would have been paid at nil till then. Further, if the assessee is to file a consolidated return before filing an application or along with the application, there would be questions even on the details of production and clearances shown therein. If the applicant is to furnish the quantum, which is to be reflected in the application for settlement, there will be no additional duty liability disclosure in the said settlement application over and above that in the consolidated return. He cannot also show at the belated stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at least 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 32E(1) of the Central Excise Act, 1944 to allow filing settlement application." 11. On a perusal of the Section 32E(1)(a), it is noticeable that certain riders have been added for entertaining applications for settlement. Clause (a) clearly lays down that unless the applicant has filed returns, s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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