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TMI Blog2018 (9) TMI 1825X X X X Extracts X X X X X X X X Extracts X X X X ..... e application and any other matter relating to the case not covered by the application. The report of the Principal Commissioner of Central Excise or Commissioner of Central Excise and Commissioner (Investigation) under subsection (3) or sub-section (4) is one of the document to be relied by the 2nd respondent while passing order under Section 32 F(S) of the CEA, 1944 - Though Section 32F if CEA, 1944 is not pari-material with Section 245 D of the Income Tax Act, 1961, nevertheless makes it clear that the order has to be passed after examination of the records and the report of the Principal Commissioner of Central Excise or Commissioner of Central Excise received under sub-section (3), and the report, if any, of the Commissioner (Invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty proposed to be demanded. The notice also called upon the Managing Director of the petitioner to show cause why penalty under Central Excise Rules, 2001 read with Section 38A of the Central Excise Act, 1944 (CEA, 1944) and Rule 26 of the Central Excise Rules, 2002 should not be imposed. 4. The Petitioner approached the 2nd respondent to settle the disputes under Section 32E of the Central Excise Act, 1944. 5. The 2nd respondent directed the petitioner to pay the admitted amount of duty within a period of 30 days from the date of receipt of the order. 6. Thereafter, a joint sittings was held on 14.12.2006 and on 26.12.2006 as per the directions of the 2nd respondent with the petitioner's Managing Director, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was decided by the Bench, that the case would be admitted and the matter referred to Commissioner (Investigation) to go into the issue and submit his report to the Bench. The decision was pronounced at the time of hearing itself. In pursuance of the same, investigation was taken up and a report was submitted by the Commissioner Investigation stating that the applicant's submissions may be given appropriate consideration. 12. However, there is no discussion regarding the report of the Commissioner (Investigation). Under these circumstances, the petitioner has filed the present writ petition. 13. Heard M/s. Cynduja Krishnan for G.R.N. Palaniappan, learned counsel for the petitioner and Mr. Thirumalaisamy learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be interfered only if it is passed contrary to the provisions of the Act. 19. In Union of India v. Ind-Swift Laboratories Ltd. 2011 (265) E.L.T. 3 (S.C.) it was held as follows:- An order passed by the Settlement Commission could be interfered with only if the said order is found to be contrary to any provisions of the Act. So far findings of the fact recorded by Commission or question of facts are concerned, the same is not open for examination either by the High Court or by the Supreme Court. 20. Section 32-F deals with Procedure on Receipt of an Application under Section 32E by a Settlement Commission. Under Sub-clause (5) of the Settlement Commission is expected to pass such orders as it thinks fit on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest. The object of the legislature, in introducing Section 245C is to see that protracted proceedings before the authorities or in Courts are avoided by resorting to settlement of cases. In this process an assessee cannot expect any reduction in amounts statutorily payable under the Act . 22. The Court further held as follows: The foundation for settlement is an application which assessee can file at any stage of a case relating to him in such form and in such manner as is prescribed. The statutory mandate is that the application shall contain full and true disclosure of the income which has not been disclosed before the assessing officer, the manner in which such income has been derived. The fundamental requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case, the report of the Commissioner (Investigation) was referred in the impugned order. However, there is no discussion on the same while rejecting the application filed by the Petitioner. Thus, the order has been passed contrary to Section 32 F (s) of the CEA, 1944. 28. As there is no discussion in the impugned order regarding the report of the Commissioner (Investigation), it is liable to be set aside as having passed contrary to Section 32-F(5) of the CEA, 1944. 29. Accordingly, the writ petition is allowed and the impugned order passed by the 2nd respondent in No. 11/2008 dated 28.02.2008 is set aside and the case is remanded back to the 2nd Respondent for passing a fresh order on merits in accordance with law aft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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