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TMI Blog2019 (6) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... ute is that - no such application shall be made unless . The applicants resubmitted the applications after rectifying the defects and was received by the Commission Registry on 11-6-2019. Thus, on the face of it, the date of application has to be reckoned as the date of receipt of the valid application duly complying with the requirement of the law stipulated in Section 32E(1) of the Act. Otherwise, there will be a clear violation of the language of the law as stipulated in Section 32E(1) ibid. If the applicants argument that the date of the earlier defective application be treated as the date of filing of applications in the instant case is accepted then clearly it would be contrary to the mandate of the law that no such application shall be made unless . Thus, the earlier invalid/defective application cannot be legally accepted as the application having been made under Section 32E(1) of the Act. The Bench holds that in the instant case the date of receipt of application is that date on which valid applications complying with the law were received, i.e., 11-6-2019. However, on the said date, the impugned SCN stood adjudicated vide O-in-O, dated 20-2-2019; hence, it was no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the SCN. 2.2 The Applicant and all the three (3) Co-Applicants had initially filed two applications (through post) for settlement of disputes arising of two SCN s which were received in the Secretariat on 15-2-2019. The said two Applications pertained to SCN s as under - (a) SCN No. DGSTI/SZU/36-08/AIL-05/2018-19, dated 5-7-2018 for ₹ 57,12,834/-. (which pertains to this order). (b) SCN No. DGSTI/SZU/36-09/AIL-05/2018-19, dated 5-7-2018 for ₹ 2,12,52,849/-. 2.3 On scrutiny of the Applications both were found to be defective and not complying with the Section 32E(1) of the Act. Hence the said two defective applications, in original, were returned to the Applicants vide Letter No. F.No. IV/16-14/General Applications/2019, dated 20-2-2019. The relevant text of the letter is reproduced below - 2. On scrutiny of the applications, it is found that the applications are defective inasmuch as (a) Application has been filed only in one set and not in quintuplicate as required under provision of Rule 3(3) of Central Excise (Settlement of Cases) Rules, 2007 [CE(SC) Rules]. (b) Further copy of the SCN for which you have filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crutiny of the same revealed that in the covering letter the Applicant has merely mentioned that they are submitting the following documents; (1) Six copies of each application (Anupam Ind. Ltd. Mehul J. Patel, Rahul Dasgupta Manoj Kumar Mishra). (2) Copy of SCN attached with application. (3) Challan of paid interest (Annexure-I). 2.5 It was further seen that the Applicant had merely forwarded the application submitted previously on 15-2-2019 (which was returned back) without making any rectification in the application. Scrutiny of the application also revealed that in the application form at Sl. No. 11 they have not mentioned the details of the interest paid. However, they have attached two challans indicating a total payment of ₹ 54,78,722/-. 2.6 In the meantime, the impugned SCN had already been adjudicated by Principal Commissioner, CGST, Vadodra-I, under Order-in-Original (O-I-O) No. VAD-EXCUS-001-COM-24-18-19, dated 22-2-2019, hence the Applicant and the Co-applicants were issued a notice vide Letter F. No. 29//CEX/AG/2019-SC(MB)2019 Appl. No. SA(E)68, 69, 70 71/2019 dated 13-6-2019 as the applications appeared to be not maintainable in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation filed earlier was not a proper application under Section 32E of the Central Excise Act, as the interest amount on the accepted duty had not been paid. And now when they have filed proper application, the case stands adjudicated and hence application is not maintainable. 6. Findings : 6.1 The Bench has examined the matter carefully. The limited issue before the Bench is maintainability of the applications under Section 32E of the Act, in the peculiar facts and circumstances of the instant case. As has been stated above, the applicant had initially filed an application which was defective - statutorily as well as procedurally. Accordingly they were returned to them in original, vide letter dated 20-2-2019 with option to resubmit after rectifying the defects. 6.2 The applicants resubmitted the applications after rectifying the defects on 11-6-2019 and, in the meantime, the impugned SCN stood adjudicated vide O-in-O, dated 22-2-2019. Hence, the present notice for non-maintainability of the application. The applicants only substantive argument is that since the applications (though defective) were filed prior to passing of the O-in-O, the same are maintainable. Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicability of exemption notification or CENVAT credit and any such application shall be disposed of in the manner hereinafter : 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; (c) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and (d) the applicant has paid the additional amount of excise duty accepted by him along with interest due : Provided further that the Settlement Commission, if it is satisfied that the circumstances exist for not filing the returns referred to in clause (a) of the first proviso to sub-section (1), may after recording the reasons therefor, allow the applicant to make such application. XXXXXXXXX. (stress provided) 6.5 A plain perusal of above reveals that for the purposes of settlement, the case must be pending before an adjudicating authority as on the date of Application under Section 32E(1) of the Act and no app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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