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TMI Blog2015 (6) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... ed violating the principles of natural justice. We, therefore, have no hesitation to hold that the impugned order has to be set aside and the matter has to be remanded to the adjudicating authority for de novo adjudication after giving the appellant time to file reply and opportunity of personal hearing. The objectives of setting up of the Settlement Commission are to provide an alternative channel for dispute resolution for the assessee and to expedite payment of Customs, Central Excise, and Service Tax, involved in disputes by avoiding costly and time-consuming litigation process. It also provides an opportunity to taxpayers to come clean who may have evaded payments of duty. The scheme encourages quick settlement of disputes and saves the worries of prosecution in certain situations. As such the scheme is an alternative dispute resolution scheme which augments tax collection preventing the revenue being held up in litigation process. The adjudicating authority has failed to appreciate the law contained in Chapter V of the Central Excise Act, 1944 in the correct perspective. However, the plea of the ld. counsel for appellant to pass an order referring the present case to Settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disputed period is from June, 2007 to 19-11-2009. A demand of ₹ 1,11,83,866 (Rupees one crore eleven lakhs eighty three thousand eight hundred and sixty six) was raised towards Central Excise duty. 4. Before going into the merits of the case, we think that it is necessary to consider the issue whether the impugned order is an ex parte order as contented by the appellant. Shri M.K. Gupta, the learned counsel appearing for the appellant, submitted that after receiving the show cause notice, the appellant vide letter dated 25-10-2012 requested for return of documents/laptop resumed during the search in order to prepare the reply. To this, the Additional Commissioner (ADJ), Central Excise, Ghaziabad issued a letter to the appellant on 17-7-2013. In this letter the appellant was directed to contact Directorate General of Central Excise Intelligence for return of the documents as the seized documents/articles are lying in their possession. The appellant then issued a letter dated 1-8-2013 to the DG of Central Excise Intelligence requesting to return the documents/laptop. The laptop was received by the appellant on 3-9-2013. A letter dated 4-10-2013 was issued to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file an application before the Settlement Commission. 6. On examination of the factual scenario with regard to the various dates preceding to the passing of the impugned order, we find that the impugned order suffers from infirmity of being an ex parte order. The search of the premises of the appellant and resumption of documents/laptop was done on 6-11-2009. The show cause notice pertaining to these appeals has been issued after more than 2 years. In between show cause notices dated 4th of May, 2010 were also issued. The appellant had to prepare reply to all these show cause notices. The appellant requested for return of the documents/laptop on 25-10-2012. After lapse of more than a year a letter was sent to the appellant on 21-6-2013 to collect the document/laptop from the DG (AE) office. The appellant then sent the request to the DG (AE) to return the laptop, CPU and other documents. As per the receipt of acknowledgement the laptop was returned to the appellant only on 3-9-2013. The matter was thereafter posted for personal hearing on 20-10-2013, 26-11-2013, and 10-2-2014. The appellant had promptly responded to all notices of personal hearing by filing a request for adjou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Commission for settlement of case. Moreover, out of the duty demand of 1.11 crores the appellant deposited an amount of ₹ 75.14 lakhs. The copy of the challan s produced along with the appeal shows that the appellant has paid an amount of 50 lakhs on different dates from the date of the search, 6-11-2009 to 13-11-2009. This action of the appellant depositing part of the demand raised reflects the genuineness of the request of the appellant seeking time to prepare and file applications before the Settlement Commission. However, the request by the appellant made in various letters not to conclude the proceedings and grant time to file application before the Settlement Commission has apparently been not heeded to by the authority below. In our opinion, the adjudicating authority ought to have examined whether the request of the appellant is genuine or not and allowed reasonable time before passing the adjudication order. 9. Section 32E provides that the assessee has to make an application to the Settlement Commission before adjudication. Sub-clause (c) of Section 31 of the Central Excise Act, 1944 defines case as under; (c) case means any proceeding under this Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n opportunity to taxpayers to come clean who may have evaded payments of duty. The scheme encourages quick settlement of disputes and saves the worries of prosecution in certain situations. As such the scheme is an alternative dispute resolution scheme which augments tax collection preventing the revenue being held up in litigation process. The adjudicating authority has failed to appreciate the law contained in Chapter V of the Central Excise Act, 1944 in the correct perspective. However, the plea of the ld. counsel for appellant to pass an order referring the present case to Settlement Commission cannot be granted. 12. Sub-clause (1) of Section 35C states that the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. The section does not say that the Tribunal can pass an order re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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