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TMI Blog2021 (6) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... and full disclosure of duty liability, which has not been disclosed before the Central Excise Officer concerned - In the absence of an element of truthfulness in the application, the Commission is liable to reject the application in limini and send the matter back to the adjudicating authority by invoking Section 32L of the Act. This being the scope of consideration by the Settlement Commission, the findings of the Settlement Commission are of paramount importance for the purpose of considering this writ petition. The findings of the Settlement Commission reveal that the petitioner has not approached with clean hands. The show cause notice was issued for non-payment of service tax on broadcasting services and sale of space or time for advertisement services. Once a dispute is raised and the petitioner approached the Settlement Commission, without furnishing full and true disclosures, then there is no reason whatsoever for the Commission to entertain the application for settlement and thus, the writ petitioner is not entitled for settlement by invoking the provisions of the Act. The provisions for settlement are provided in a statute enabling the aggrieved person to come ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the outset, it is contended that the petitioner has made a true declaration and had cooperated for the settlement of the issues before the Commission and thus, the order passed by the second respondent is to be set aside. 4.The learned Senior Standing Counsel appearing on behalf of the respondents disputed the said contentions by stating that the provision is very clear under Section 32L of the Act wherein, power of the Settlement Commission to send the case back to the Central Excise Officer is enumerated. As per Section 32L, if a person has not cooperated with the Settlement Commission in the proceedings before it, then the Commission is well within its powers to send the case back to the competent adjudicating authority. 5.In the present case, there is a clear finding that the petitioner has not cooperated for the adjudication only in the event of true and clear declaration. Settlement can be made and even an iota of doubt in respect of the declaration could be sufficient to send the matter back to the adjudicating authority. Thus, the writ petition is devoid of merits and is liable to be dismissed. In this regard, the learned Senior Standing Counsel relied on the findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. This principle has clearly been enunciated by the Hon'ble High Court of Bombay in the case of Amrut Ornaments reported in 2014 (305) ELT 365 (Bom.) and by the Hon'ble Delhi High Court in the case of Union of India vs. Dharampal Satyapal as reported in 2013 (298) ELT 653 (Del.),by the Hon'ble Allahabad High Court in the case of Vinay Wire Poly Product P. Ltd. vs. Dir General of Central Excise Intelligence reported at 2014 (307) ELT 438 (All) and also by the Hon'ble Madras High Court in the case of Australian Foods Ltd. vs. Commissioner of Central Excise, Chennai II reported in 2012 (254) ELT 392 (Mad.) 6.Considering the arguments, this Court is of the considered opinion that the scope of settlement by the Settlement Commission is to be considered with reference to the provisions of the Act. Section 32E of the Act provides for filing of an application for settlement of cases. Section 32E(1) enumerates that 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 containing a full and true disclosure of his d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not one that can be settled in the Commission in view of the issues involved and rival claims leading to total divergence on facts, which are impediment for settling the case. The issue of analysing the facts, interpretation of legal provisions and consequently determining the correctness of tax paid or otherwise of services provided by the applicant merely on the basis of claims made by them vis-a-vis counter claims made by the Department cannot be decided in the Commission as in an adjudication proceedings. Further, the Settlement Commission observed that the applicant did not produce any documents substantiating their claim of substantial portion of income being relatable to non-taxable activity/exempted services before the investigating officers or before the Settlement Commission clearly indicating non-cooperation on their part for settling the issue. Thus, the case involves both disputed questions of fact and law and therefore, it would be appropriate that the case is to be adjudicated by the jurisdictional officer after appreciation of facts and evidences let in by the applicant. 10.The findings made in the impugned order would reveal that the complex nature of mixed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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