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TMI Blog2008 (7) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... e admission stage of the appeal and the petition for stay of operation of the order of the adjudicatory authority the principal amount held to be due was directed to be deposited as pre-deposit by the appellate authority. 2. The appellate authority found no reason to interfere with the order of the adjudicatory authority and rejected the appeal. In the order rejecting the appeal, the appellate authority directed appropriation of the amount which was deposited by the petitioners. The petitioners, thereafter, instead of carrying the dispute to a higher forum, preferred to apply before the Customs and Central Excise Settlement Commission (which I shall henceforth describe as the Commission ) constituted under the provisions of Section 32 of the Central Excise Act, 1944 for settling the dispute. It appears that in that application before the Commission, prayer was made for settlement of duty, waiver of interest and immunity from penalty. 3. The Commission, by an order passed on 13th November, 2006 rejected the application on the ground that the date on which the application was made, no case was pending. The operative part of this order, along with the reason given by the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be prescribed including the particulars of such excisable good; in respect of which he admits short levy on account of misclassification or otherwise of such excisable goods, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided : Provided that no such application 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 of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986). (2) Where any excisable goods, books of accounts, other documents have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete. In the present case, he argued, since penalty imposed by the adjudicatory authority was still to be collected, the case as defined under the provisions of Section 31(c) of the Act was still pending in the case of the petitioners. He also sought to emphasise on the distinction between levy and collection of duty relying on two authorities, being the cases of N.B. Sanjana, Assistant Collector of Central Excise, Bombay Ors. v. Elphinstone Spinning and Weaving Mills Co. Ltd., 1978 (2) E.L.T. (J) 399 (S.C.) and Commissioner of Central Excise, Calcutta v. Hindustan National Glass Industries Ltd. - 2005 (182) E.L.T. 12 (S.C.) in support of his submissions that if the collection in terms of an order of the excise authorities remain to be effected the case could not be held to be complete. 8. Mr. Tarafdar, learned Counsel appearing for the revenue authorities agreed to contest the writ petition without filing of any affidavits, as this writ petition involved adjudication on questions of law only. The submission of the revenue authorities is that upon passing of the order of appropriation there was no proceeding left for collection of any duty under the Central Excise Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for realisation of duty imposes penalty and directs payment of interest, and only penalty and interest remains to be realised and other part of the order stands complied with, whether a case could be said to be pending on the ground that the recovery of penalty and interest still remains to be recovered. The Hon ble Supreme Court, in the case of Chhotabhai (supra) examined the meaning of excise duty , and observed. In our view, a duty of excise is a tax-levy on home produced goods of a specified class or description, the duty being calculated according to the quantity or value of the goods and which is levied because of the mere fact of the goods having been produced or manufactured and unrelated to and not dependent on any commercial transaction in them .. 11. In Section 11 of the Act, which lays down the manner in which recovery of sums due under the Act is to be made by the authorities, the term duty and another sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder .. have been referred to separately, and the other sums have not been treated as component of duty. It is quite clear, thus, penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty was left to be collected at that point of time. 15. As I have observed earlier, the case in this matter commenced with the issuance of notice to show cause. This case continued when the proceeding was pending before the adjudicatory authority and the appellate authority. Since the definition of case involves proceeding for collection of duty also, the case, in my opinion, would not conclude till entire collection is made. In the instant matter, admittedly penalty and interest imposed by the adjudicatory authority and confirmed by the appellate authority remains to be collected or realised. But such collection is to be made in connection with the original proceeding only, initiated by the notice to show cause. I do not think that just because no further duty element is left to be realised, the proceeding against the petitioner, in which penalty and interest are left to be recovered, gets divested of its character as a case. I do not think that such truncated meaning of a case is contemplated in the Act. 16. Penalty has been imposed and interest has been directed to be paid in the instant matter only in connection with the case relating to assessment and col ..... X X X X Extracts X X X X X X X X Extracts X X X X
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