- (1.) THE petitioners herein, a company incorporated under the provisions of the Companies Act 1956, were subjected to a proceeding initiated under the Central Excise Act 1944 on the allegation of wrongly availing MODVAT credit. Initially a notice to show cause was issued to the petitioners to which they filed their response. Thereafter, an order was passed by the Joint Commissioner Central Excise, Bolpur (being the adjudicator authority), confirming a demand of Rs. 6,36,291. 24. In the order, an equivalent sum as penalty in terms of Rule 571 (4) of Central Excise Rules 1944 was imposed, along, with interest on the amount of credit disallowed. The petitioners preferred an appeal against the order but was unsuccessful before the appellate authority, being the Commissioner, Central Excise (Appeals), Kolkata-IV. At the admission stage of the appeal and the petition for stay of operation of the order of the adjudicatory authority, the principal amount held to be due was directed to be deposited as pre-deposit by the appellate authority.
(2.) THE appellate authority found no reason to interfere with the order of the adjudicatory authority and rejected the appeal. In the order rejecting the appeal, the appellate authority directed appropriation of the amount which was deposited by the petitioners. The petitioners, thereafter, instead of carrying the dispute to a higher forum, preferred to apply before the Customs and Central Excise Settlement Commission (which I shall henceforth describe as the "commission") constituted under the provisions of section 32 of the Central Excise Act, 1944 for settling the dispute. It appears that in that application before the Commission, prayer was made for settlement of duty, waiver of interest and immunity from penalty.
(3.) THE Commission, by an order passed on 13th November 2006 rejected the application on the ground that the date on which the application was made, no case was pending. The operative part of this order, along with the reason given by the Commission for such rejection, is reproduced below:- "5. We have heard both the parties, perused record and considered the circumstances of the case. Section 32e (1) of the Act, says "an assessee may, at any stage of a case relating to him make an application in such form and in such manner as may be prescribed, containing a full and true disclosure of his duty, liability which has not been disclosed before the central Excise Officer having jurisdiction. . . . . " (underline supplied by us ). Section 31 [c] defines - "case" means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, or any proceeding by way of appeal or revision in connection with such levy assessment or collection, which may be pending before a Central Excise Officer or Central Govt. on the date on which an application under sub-section (1) of Section 32e is made (underline supplied by us ). A plain reading of both the sub-sections makes it clear that that a case must he pending before a Central Excise Officer on the date of filing settlement application. The applicant has been made on 07. 08. 2006 but the appellate order of the Revenue has been passed on 30. 11. 2005. No case was, therefore, pending before a Central Excise officer on the date on which the application under section 32e (1) was made. Therefore, there was no case pending on the date of the application before a Central Excise officer. The application is, therefore, rejected. ";