Full Judgment
WP No.393 of 2014 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE Rohit Ferro Tech LTD.& ORS.Versus Settlement Commission & ORS.Before: The Hon'ble Justice I.P.MUKERJ.Date: 26th August 2014 Appearance: Mr.Sudhir Kr.
Mehta, Advocate for the petitioner Mr.R.N.
Das, Sr.Advocate MRS.Santa Mitra, Advocate for the respondents The Court: In this case four show-cause notices were dealt with by the Settlement Commission at an earlier point of time.
This case arises out of an application made by the writ petitioner under Section 32E of the Central Excise Act, 1944 with regard to the fifth show-cause notice.
It appears that the Settlement Commission in its order dated 28th March 2014 has not made a correct interpretation of Section 32-O(i) of the Central Excise Act, which is reproduced below: “32-O.
… [Where, [***].].- (i) an order of settlement passed under sub-section (7) of section 32F [, as it stood immediately before the commencement of section 122 of the Finance Act, 2007 (22 of 2007) or sub-section (5) of section 32F,].provides for the imposition of a penalty on the person who made the application under section 32E for settlement, on the ground of concealment of particulars of his duty liability; ……… then, he shall not be entitled to apply for settlement under section 32E in relation to any other matter.” The Commission has no doubt held in paragraph 24 of its order that a penalty of Rs.5 lakhs was imposed on M/S.Rohit Ferro Tech Limited.
But it failed to appreciate that this did not prevent Rohit Ferro Tech Limited from approaching the Settlement Commission in a second case unless the penalty was inflicted on them, on their making a Section 32E application for settlement and that the ground of imposition of that penalty was concealment of particulars of duty liability.
Section 32E enacts in very clear terms that an assessee may in a case relating to him make an application after issuance of the show-cause notice but before adjudication, to the Settlement Commission to have the case settled.
Such application has to be in a prescribed form with full and true disclosure of the applicant’s duty liability which has not been disclosed before the Central Excise Officer having jurisdiction.
Now, if there is any concealment in that application and a penalty has been imposed by the Settlement Commission on the ground of such concealment, then a second application before the Settlement Commission is barred, in my interpretation of Section 32-O(i) of the said Act.
The order of the Settlement Commission does not specify whether this kind of a penalty was imposed on the writ petitioner.
Just because a penalty is imposed on a show-cause notice the writ petitioner’s application before the Commission was not entertained.
In that view of the matter, I direct the Settlement Commission to reconsider its order dated 28th March 2014 in the light of the above observations and if it is found that the penalty has not been imposed on the writ petitioner in an application for settlement under Section 32E, on the ground of concealment of particulars of their duty liability in that application, then the Commission will proceeded to consider their case on merits.
This writ application is accordingly disposed of.
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P.MUKERJI, J.) R.
Bose AR(CR)