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TMI Blog2017 (5) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... o before the Settlement Commission. At least if the petitioner had made an application on 27- 12-2016 before the Settlement Commission claiming ignorance of the order of adjudication dated 24-12-2016, he may be entitled to raise all the legal issues. But even till date the petitioner has not made any application before the Settlement Commission. But admittedly the order of adjudication has been served at least on 18-01-2017 - the petitioner is not even entitled to raise any of the above issues. Petition dismissed - decided against petitioner. - Writ Petition No. 6871 of 2017 - - - Dated:- 17-4-2017 - V. Ramasubramanian And J. Uma Devi, JJ. For the Petitioner : Sri S. Vivek Chandrasekhar For the Respondent : Sri B. Narasimha Sarma, learned standing counsel ORDER ( V. Ramasubramanian, J ) The petitioner, who is engaged in the business of construction, has come up with the present writ petition challenging an Order-in- Original passed by the 4th respondent herein, demanding payment of service tax to the tune of ₹ 1,20,92,847/-, together with interest and penalty. 2. Heard Mr. S. Vivek Chandrasekhar, learned counsel for the petitioner and Mr. B. Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication was served on them, the Order-in-Original is liable to be set aside. It is the contention of the learned counsel for the petitioner that the words before adjudication appearing in Section 32E has to be understood to mean the communication of the order of adjudication in accordance with the procedure prescribed under Section 37C of the Act. In other words it is the contention of the petitioner that till the order of adjudication is actually served on the petitioner, the right conferred by Section 32E cannot be taken away. 9. We have carefully considered the above submissions. 10. It is true that no order passed by an administrative or quasi- judicial authority will take effect unless it is served on or communicated to, the person affected by such order. It is this fundamental principle that finds statutory recognition in Section 37C. 11. But there are different types of rights that accrue to a person against whom proceedings for adjudication are initiated. One type of rights are those that flow either out of or against an order of adjudication. Another type of rights are those that are available live, till an adjudication is made. 12. In so far as the first c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment Act 22 of 2007 to Section 32E (1), it was contended by Mr. S. Vivek Chandrasekhar, learned counsel for the petitioner that before the amendment, the right to approach the Settlement Commission was available at any stage of a case. The expression case was defined under Section 31 (c) to mean any proceeding under the Act for the levy, assessment and collection of excise duty or any proceeding by way of appeal or revision. Therefore, before the coming into force of Amendment Act 22 of 2007, an application before the Settlement Commission could be filed even after disposal of an adjudication. But by the Amendment Act 22 of 2007, the words at any stage of a case have been deleted and the words before adjudication has been inserted. Therefore, it was contended by Mr. Vivek Chandrasekhar, learned counsel for the petitioner that after the amendment, the petitioner cannot even make an application, after the adjudication and that therefore, a narrow and strict interpretation may destroy the very object of Section 32E. 17. We have carefully considered the above submissions. 18. It is true that Section 32E (1) as it stood before the amendment of 22 of 2007 enabled an assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order was actually served on the assessee, the Delhi High Court struck a via media by holding that the application before the Settlement Commission could be filed till such time the order of adjudication was signed and the one way process of sending it to the assessee is put in motion either directly or indirectly through some other agency. In other words, the Delhi High Court avoided taking both extreme positions. If an order of adjudication had been signed and there was proof of dispatch, irrespective of whether it was actually served on the assessee or not, the date of such dispatch, according to the Delhi High Court, may shut the door for an assessee to approach the Settlement Commission. It was this view of the Delhi High Court in Qualimax Electronics Private Limited that was accepted by the Division Bench of the Bombay High Court in Vishnu Steels. Going a step further, the Division Bench of the Bombay High Court also held that the expression before adjudication should receive the purposive interpretation. 21. But, with great respect, we are unable to accept the views of the Delhi High Court in Qualimax Electronics Private Limited and that of the Bombay High Court in Vis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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