Soumitra Pal, J. - (1.) Though this appeal was heard along with APO No. 187 of 2015 and APO No. 236 of 2015 as common questions of law are involved, for clarity, this judgment is delivered separately.
(2.) This appeal has been preferred by the writ petitioner against the judgment dated 4th May, 2015 passed in W.P 3043(W) of 2015 (M/s. C.P.R. Rollers Ltd. and another versus Union of India and others) whereby the learned Single Judge while dismissing the writ petition had upheld the order dated 27th August, 2014 passed by the Customs, Central Excise Settlement Commission (for short 'the Commission'). The Commission had dismissed the application for settlement filed under Sec. 32F by the appellant by holding, inter alia, as under: - - "9.0 The applicant has been penalised in an earlier case under an order issued under Sec. 32F(5) for concealing his duty liability. 11.0 The provisions of Sec. 32 -O(1)(i) are absolutely clear. It categorically provides that where a penalty has been imposed on a person under Sec. 32F(5), on the ground of concealment of particulars of his duty liability such a person is not entitled to apply for settlement under Sec. 32F in relation to any other matter. Further, as per the clarification added to Sec. 32 -O in the Union Budget 2014, concealment referred in Sec. 32 -O(1) is with reference to the concealment from Central Excise Officer and not from the Settlement Commission. 12.0 The Bench has no jurisdiction to entertain such an application as it is barred by Sec. 32O(1)(i) of the Central Excise Act, 1944 and is liable to dismissal, without going into the merits of the case. The application of the co -applicant cannot also be settled when the main applicant is not eligible to come before the Settlement Commission. In terms of Sec. 32O(1)(i) of the Central Excise Act, 1944, without going into the merits of the case, both the application are outrightly rejected and dismissed." (Emphasis supplied)
(3.) Mr. J.P. Khaitan, learned senior advocate appearing for the appellant submitted that the Commission erred in rejecting the application for settlement holding it being barred by the provisions contained in Sec. 32 -O(1)(i) of the Central Excise Act, 1944 ("Act" for short) as in earlier proceedings penalty was not imposed for concealment of particulars of liability duty. Hence, as the bar under Sec. 32 -O(1)(i) of the Act has no application, the application for settlement should not have been rejected. Earlier, in the final order of settlement dated 4th January, 2011, penalty was imposed on the appellants under the provisions invoked in the show cause notice and the same cannot be inferred as imposition of penalty under Sec. 32F(5) of the Act. Submission was the 'Explanation' added to Sec. 32 -O(1)(i) cannot alter the situation. Neither the Commission found that the appellants did not fully and truly disclose facts regarding the issues to be settled in their application before the Commission nor the Commission discovered any additional duty liability. In short, as no concealment could be found and as repeated applications before the Commission is not a bar, the order of the Commission is illegal. Though there is a bar under Sec. 32 -O(1)(i) of the Act, the case of the appellant does not fall within its mischief. Since Sec. 32(O)(1)(i) stipulates ouster of jurisdiction, strict construction of the statute is necessary. Therefore, the Commission in its order should have specifically held that in the earlier proceedings penalty was imposed for concealment of particulars of duty liability. If imposition of penalty of any kind would have been a disqualification, then the words "concealment of particulars of his duty liability" in Sec. 32 -O(1)(i) would not have been incorporated. In the case of the appellant there was no finding that there was concealment of particulars of duty liability. Submission was the bar under Sec. 32 -O(1)(i) got diluted with the introduction of sub -section 2 to Sec. 32 -O with effect from 1st June, 2007 which was omitted from the statute book on 8th May, 2010. Alternatively, since the application for settlement was rejected by the Commission, under Sec. 32F(1) of the Act, the proceedings before the Commission have abated. As there was no adjudication pursuant to the show cause notice dated 6th February, 2014, the adjudication proceedings stand revived. Hence, the appellant may be granted liberty to pursue the adjudication proceedings before the appropriate authority under the Act. Since the Commission refused to entertain the application for settlement on the ground of lack of jurisdiction and as there was no occasion for the Commission to pass an order of settlement under Sec. 32F(5), the question of applicability of Sec. 32M does not arise at all. Mr. Khaitan has relied on the following judgments in support of his submission: - - Hoosein Kasam Dada (India) Limited v/s. State of Madhya Pradesh: : 1983 ELT 1277 (S.C.); Jyotendrasinjhi v/s. S.I. Tripathi: : 1993 ITR (201) 611; Cosmic Dey Chemical v/s. Collector of Central Excise, Bombay:, 1995 (75) E.L.T. 721 (S.C.); K.C. Builders v/s. Assistant Commissioner of Income -Tax: : 265 ITR 562(SC); Amrit Foods v/s. Commissioner of Central Excise, U.P:, 2005 (190) ELT 433 (SC); LIC v/s. R. Suresh : : (2008) 11 SCC 319; Jai Jagdamba Malleable (P) Ltd. v/s. Union of India: : 2009(237) ELT 240 (S.C.); Union of India v/s. Rajasthan Spinning & Weaving Mills: : 2009 (238) ELT 3(SC) and Union of India v/s. Asahi India Safety Glass Ltd.: : 2015 (32) ELT 179 (SC).;