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TMI Blog2011 (8) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... te to be stated are that the petitioner M/s. Icon Industries (Unit-I & II) filed a the settlement application in respect of the proceedings initiated vide SCN C. No. IV (Hqrs. Prev.) 15/5/03/2598 dated 8th April, 2005 issued by the Commissioner, Central Excise, Delhi-I. The Settlement Commission adverted to the various facts and submissions put forth and eventually came to hold that the search was conducted on 7th February, 2003 and thereafter units of the petitioner were registered on 18th February, 2003. After that, consolidated return was filed with the Department. It was contended before the Commission that after the search, a sum of Rs. 50 lacs was deposited with the Department towards duty and, therefore, the petitioner is entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as follows :- "(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 32E(1) does not refer to Rule 12 of the C.E. Rules under which ER-1/ER-3 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form, as the said ad hoc disclosure would not be truthful at that stage. As a result, a consolidated return filed just before filing the application or along with the application by a person, not registered with Central Excise and not having ECC Code Number, cannot be considered as satisfying the requirement of having filed returns as laid down in Clause (a) of the first proviso to Section 32E(1) of the Central Excise Act, 1944." 6. After so stating, the Special Bench proceeded to state in paragraph 11(c) as follows :- "(c) Can returns filed after obtaining ECC Code, but for the period prior to obtaining such Code Number, be treated as valid returns as per Sec. 32E(1) of the Central Excise Act, 1944. Answer : No. The reply fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered as satisfying the condition of clause (a) of Section 32E(1) of the Act. The Special Bench has given the answer in the categorical negative. Thereafter, the Special Bench has further posed a question whether a consolidated return filed after obtaining ECC Code, but for the period prior to obtaining such code number, could be treated as a return under clause (a) to Section 32E(1). The same has also been answered in negative. Mr. Jain has drawn inspiration from the lines that "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." As we understand, the Commission has drawn distinction between mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (5 of 1986)" 9. On a perusal of the aforesaid provision, it is noticeable th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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