9911796707
TMI Blog2018 (9) TMI 1715X X X X Extracts X X X X X X X X Extracts X X X X ..... fter referred to as 'SCN') by Commissioner of Service Tax-II, Kolkata. 1.3 The applicant, a Limited Company under Companies Act, 1956 and holding centralized Service Tax Code No. AACCE3506GSD001 against Mining of Mineral, Oil or Gas Services, GTA Service and Renting of Immovable Property Service, have engaged in providing Mining Service to their Joint Venture Companies with various Government owned Power utilities for raising and dispatch of coal to the Thermal P Plants of the Joint Venture Partners during the disputed period from 1-7-2012 to 31-3-2015 and for such services they have received amounts towards Mining Charges from the Joint Venture Companies and such services provided by them are classifiable under Mining of Mineral, Oil or Gas Service with the meaning of erstwhile Section 65(105)(zzzy) of the Act as amended and chargeable to Service Tax under Section 66 of the Act (upto 30-6-2012) and w.e.f. 1-7-2012 chargeable to Service Tax under Section 65B(44) & 65B(51) Section 66B of the Act. 1.4 It is alleged that the applicant was not discharging their Service Tax Liability on the Mining of Mineral, Oil or Gas Services even though they are registered for the above services. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Cess. (iii) Penalties should not be imposed upon them in terms of Sections 76 and 77 of the Act as amended for failure to pay Service Tax including Education Cess and for contravention of the provisions of Sections 68 and 70 of Chapter V of the Act as amended. 1.7 Another SCN, for the period from 1-1-2013 to 31-3-2015, was issued on 18-10-2016 whereby the applicant was called upon to show cause to the Commissioner of Service Tax-II, Kolkata, Kendriya Utpad Shulka Bhavan, 3rd Floor, 180, Shanti Pally, Rajdanga Main Road, Kolkata - 700 107 as to why :- (i) Service Tax (including cess) amounting to Rs. 197,54,37,566/- (including cess) should not be demanded and recovered from them under sub-section (1) of Section 73 of the Act, as amended. (ii) Interest at an appropriate rate under Section 75 of Chapter V of the Act, as amended should not be charged/demanded from them as applicable during the material period for the delayed payment of Service Tax including Cess. (iii) Penalties should not be imposed upon them in terms of Sections 76 and 77 of the Act as amended for failure to pay Service Tax including Cess and for contravention of the provisions of Sections 68 and 70 of Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Postal Department. 3.3 The Assistant Commissioner of the office of the jurisdictional commissioner further submitted on 1-11-2017 that since the order has neither been returned back by the postal authority nor the applicant reported non-receipt of the order, the order has definitely been delivered. Further, it has also been submitted that no amount has been recovered by the applicant till date. 3.4 The Assistant Commissioner of the office of the jurisdictional Commissioner on 10-1-2018 forwarded a letter of the Deputy Manager, MBC Sealdah RMS, Kolkata - 700 014 under No. MBC-SDA/Enq-30/17-18, dated 5-1-2018 wherein the postal authority has intimated that the article was delivered to the addressee on 24-6-2017. Hearing : 4.1 The matter was heard on 12-4-2018. Shri Bikash Mukherjee, Director, along with Shri Ayan Sinha, AGM (F&A) appeared on behalf of the applicant, M/s. Emta Coal Ltd. Shri Ayan Sinha, AGM (F&A) submitted that it has been contended by the Department that the Adjudication Order has been passed on 21-6-2017, but the fact is that they have received the Adjudication Order on 24-6-2017. Thus it is clear that they have not received the Adjudication Order before filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt application on time. He lastly prayed that their application may please be proceeded with. 4.2 The Department represented by Shri Uday Chand Mallik, Assistant Commissioner, Park Street Division, reiterated the submission already submitted by him at the time of last hearing held on 6-4-2018. He again submitted that this case was adjudicated on 21-6-2017 and the order was despatched by speed post on the same day. The Postal Authority informed that the article was delivered to the addressee on 24-6-2017. He further submitted that this case was posted for hearing on a number of occasions and the case was finally adjudicated on 21-62017. Findings of the Bench 5.1 The Commission has perused the records of the case including the submissions made by the applicant and the Department. Here, there has been two service tax demands amounting to Rs. 1,54,88,28,983/- and Rs. 1,97,54,37,566/- and the applicant has admitted Rs. 5,95,358/- as additional duty liability only in the settlement application. The settlement application was received on 23-6-2017. The jurisdictional Commissioner has intimated on 16-8-2017 that the SCNs in this case has been adjudicated vide Order-in-Original No. 0809/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contents of Section 32E(1) of the Central Excise Act, 1944, the relevant portion of the said Section is reproduced hereinbelow. "Section 32E. - Application for settlement of cases. - (1) An assessee may, in respect of a case relating to him, make an application, before adjudication, to the Settlement Commission to have the case settled, in such form and in such manner as may be prescribed and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification, under-valuation, inapplicability of exemption notification or CENVAT credit2 [or otherwise] and any such application shall be disposed of in the manner hereinafter provided :" 7. From the contents of Section 32E(1), it is clear that an assessee can make an application for settlement "before adjudication" (emphasis supplied). 8. The expression "before adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment, the filing of an appeal or revision after the expiry of the period of limitation, was treated to be not a proceeding pending within the meaning of the clause. This was under the proviso to Section 31(c). But this proviso has now been substituted by a new proviso. 19. Therefore, the question as to whether the assessee would have a right after adjudication does not arise any more, after Amendment Act 22 of 2007. The right is conferred by Section 32E(1) only before adjudication and not after adjudication, at least after Amendment Act 22 of 2007. 20. Mr. S. Vivek Chandrasekhar, learned counsel for the petitioner placed heavy reliance upon the decision of the Bombay High Court in Vishnu Steels v. Union of India - 2014 (299) E.L.T. 292. The said decision arose out of very peculiar facts. In the said case, an application for settlement was filed on 14-1-2011, a day after the order of adjudication was passed on 13-1-2011. Two Members of the Settlement Commission held that since the application was made after adjudication, the application was not maintainable. But the Third Member held the application to be maintainable, on the basis of the decision of the Delhi High Court in Quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unication" or "from the date of receipt" or "the date on which it was communicated" etc. But while dealing with the rights on the "settlement mode" conferred upon the assessee, the statute carefully avoided the words "date of communication" or "date of receipt" etc., but chose to employ the words "before adjudication". That the choice of the language was consciously made with the intention of depriving persons on the "fight mode", the right to seek settlement, is made clear by the manner in which Section 32E(1) was amended under the Amendment Act 22 of 2007. As we have indicated earlier, the right to approach the Settlement Commission before the Amendment Act 22 of 2007 was "at any stage of the case". After amendment it is only "before adjudication". Therefore, the communication or service of the copy of the order of adjudication, gives rise to a different set of rights and it should not be confused with a right to approach the Settlement Commission. As rightly pointed out by a Division Bench of the Punjab and Haryana High Court in Ankush Khullar v. Union of India -2015 (327) E.L.T. 37 (P&H), the order of adjudication denudes the Settlement Commission of its jurisdiction to entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant, as the application in this case was filed after the order was despatched. 9.4 Further, the facts in the case of M/s. Vishnu Steels v. Union of India are distinct and distinguishable, as in the said case, the petitioner repeatedly requested for supply of relied upon documents for furnishing reply to the Show Cause Notice, pending before the Adjudicating Authority. Further, the petitioner reiterated their plea before the adjudicating authority to keep the adjudication proceedings in abeyance as they were contemplating to approach Settlement Commission soon. They also enclosed a copy of GAR-7 Challan in proof of payment of fee for filing of the settlement application. The Commissioner, notwithstanding the request of the petitioner and without supply of documents sought for, passed the adjudication order in undue haste on 13-1-2011 i.e. one day before the filing of the settlement application on 14-1-2011. The factual matrix of M/s. Vishnu Steels is divergent from the facts involved in the present case. Hence the ratio of judgment laid down by M/s. Vishnu Steels is not also applicable in the present case. 9.5 In M/s. Qualimax Electronics Pvt. Ltd., the Hon'ble Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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