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TMI Blog2009 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... Act had been made.” – held that - In the facts of the present case Settlement Commission having not made any order under Section 32F of the Act and having exercised powers under Section 32L of the Act, there is no question of invoking and applying provision of Section 32M of the Act, and the respondent authority has thus committed an error in law - Respondent authority shall continue the adjudication proceedings from the stage at which the proceedings before Settlement Commission commenced - 228 of 2009 - - - Dated:- 12-3-2009 - D.A. Mehta and S.R. Brahmbhatt, JJ. REPRESENTED BY : Shri D.V. Parikh, for the Petitioner. Shri Y.N. Ravani, for the Respondent. [Judgment per : D.A. Mehta, J. (Oral)]. - Considering the scope of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 11/VDR-II/MP/05 F. No. V CH.32 (15) 1/OA/De novo/2005 confirming duty amounting to Rs. 90,50,293/-, and the said order came to be issued on 6-12-2005. 5. It is pertinent to note that aforesaid fact was pointed out to the Settlement Commission at the time of admission hearing of the application made by the petitioner, and Settlement Commission recorded in its order dated 8-5-2006 in the following words :- "Further the adjudication order dated 30-10-05 passed in de novo proceedings becomes nonest as the same had been passed on a date after filing of the application by the applicant for settlement of its case." 6. Thereafter, various hearings took place before Settlement Commission and ultimately it appears that the petitioner was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner, "the case" was under consideration of the Settlement Commission, but ultimately because of the opinion of the Settlement Commission that the petitioner had not cooperated with the Settlement Commission in the proceedings before the Settlement Commission, in exercise of powers under Section 32L(1) of the Act Settlement Commission had sent the case back to the adjudicating authority, who is bound thereupon to dispose of the case in accordance with provisions of the Act, as if no application under Section 32F had been made. That, therefore, the respondent authority was in error in calling upon the petitioner to make payment of duty, penalty and interest without any adjudication. 9. As against that, the learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with the provisions of this Act as if no application under Section 32E had been made. 2. For purpose of sub-section (1), the Central Excise Officer shall be entitled to use all the materials and other information produced by the assessee before the Settlement Commission or the result of the inquiry held or evidence recorded by the Settlement Commission in the course of the proceedings before it as if such materials, information, inquiry and evidence had been produced before such Central Excise Officer or held or recorded by him in the course of the proceedings before him. 3. For the purposes of the time limit under Section 11A and for the purposes of interest under Section 11BB, in a case referred to in sub-section (1), the period co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion, shall not operate for the purposes of computing the limitation of one year or five years, as the case may be, prescribed under Section 11A of the Act for the recovery, and the balance period as may be available from the date of making of application before Settlement Commission shall be available to the adjudicating authority for making an order assessing duty liability of an assessee. 12. In the facts of the present case Settlement Commission having not made any order under Section 32F of the Act and having exercised powers under Section 32L of the Act, there is no question of invoking and applying provision of Section 32M of the Act, and the respondent authority has thus committed an error in law. This becomes amply clear by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring issued by the authority during pendency of the application dated 6-10-2005 made by the petitioner before the Settlement Commission, because that is the legislative scheme. The Court is not called upon to decide whether the Settlement Commission has rightly exercised the powers while making the declaration of the order of adjudication being nonest in law because that order is not under challenge in the present proceedings, and that too, by the respondent authority. 14. The net result is that the impugned communications dated 17-10-2008, 17-11-2008 and 29-12-2008 can not be permitted to operate and are accordingly quashed and set aside. Respondent authority shall continue the adjudication proceedings from the stage at which the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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