Soumitra Pal, J. - (1.) Though this appeal was heard along with MAT 974 of 2015 and APO No. 187 of 2015 as common questions of law are involved, for clarity, this judgment is delivered separately.
(2.) This appeal has been preferred by the Commissioner of Central Excise and Service Tax, Durgapur Commissionerate, against the judgment dated 26th August, 2014 passed in W.P. 393 of 2014 (Rohit Ferro Tech Limited and others versus Settlement Commission and others) whereby the learned Single Judge had disposed of the writ petition by passing the following order: - "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 Sec. 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 Sec. 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 Sec. 32F, as it stood immediately before the commencement of Sec. 122 of the Finance Act, 2007 (22 of 2007) or sub -section (5) of Sec. 32F,] provides for the imposition of a penalty on the person who made the application under Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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."
(3.) Mr. R.N. Das, learned senior advocate for the appellant had submitted that it is apparent from the judgment under challenge that earlier four show cause notices were issued. On each occasion the respondent filed applications for settlement under Sec. 32E of the Central Excise Act, 1944 (for short 'the Act'). Those were considered by the Customs, Central Excise Settlement Commission (for short 'the Commission') and orders on each of those applications were passed imposing penalty for concealment of duty particulars. The respondents, in appeal, that is the writ petitioners, had accepted the said orders. Under Sec. 32M of the Act those orders passed under Sec. 32F(5) are conclusive and binding on the respondent and cannot be reopened. As it was found by the authorities that the respondents herein were again indulging in clandestine manufacture and clearance of goods, show cause notice dated 7th May, 2013 was issued. It was the fifth show cause notice. The respondent filed an application for settlement admitting removal of finished goods without payment of duty and deposited a sum of Rs. 20 lakhs in advance. According to him, as on earlier four occasions orders were passed by the Commission imposing penalty for evasion of duty, the Commission was justified in passing the order dated 28th March, 2014 on the said application for settlement holding it had no jurisdiction to entertain the application under Sec. 32 -O(1)(i) of the Act which the learned Single Judge in the impugned judgment had overlooked. Moreover in the writ petition the vires of Sec. 32 -O was not under challenge. Had the respondents been aggrieved with the fifth show cause notice, instead of filing applications for settlement, they should opted for adjudication under the Act.;