R BUILDERS Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. Paresh M. Dave, learned advocate for the petitioners.

(2.) This petition seeks to challenge Final Order No. 29/CEX/2005 dated 28th September, 2005 (Annexure-F) made by Customs & Central Excise Settlement Commission, Mumbai. It is the case of the petitioners that the impugned order misreads the provisions of Section 32E(1) of the Central Excise Act, 1944 (the Act) by purporting to follow the Special Bench decision of the Settlement Commission being Emerson Electric Company (India) Pvt. Ltd.,2005 189 ELT 377 and holding that the petitioner is not eligible. According to him, the approach of the Settlement Commission is bad in law as it differentiates between different classes of small scale industrial units who evade the law by not filing the monthly/yearly returns on the one hand and those filing only yearly declarations which have been equated by the Settlement Commission with the returns. For this purpose, he has placed reliance on issue No. (c) framed by the Settlement Commission and answered in Paragraph No. 3 of the order made by the Special Bench as well as observations of the Special Bench made in Paragraph No. 2.14 of its order.

(3.) As can be seen from provisions of Section 32E(1) of the Act, the first Proviso and Clause (a) thereof specifically provide that no application under Section 32E(1) of the Act shall be made unless the applicant has filed returns showing production, clearance and central excise duty paid in the prescribed manner. The Special Bench of the Tribunal has taken cognizance of the aforesaid provisions in Paragraph No. 2.12 of its order and held that once there is requirement prescribed by the statute by way of a qualifying condition it is not possible to admit applications which do not fulfill the requirement stipulated by the first Proviso to Section 32E(1) of the Act. It is not possible to find any infirmity in the aforesaid reasoning adopted by the Special Bench of the Settlement Commission, and as a consequence, by the Bench of the Settlement Commission while passing the impugned order.