COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, DURGAPUR COMMISSIONERATE Vs. ANKIT METAL & POWER LTD.

JUDGEMENT

(1.) Though this appeal was heard along with MAT 974 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 Commissioner of Central Excise and Service Tax, Durgapur Commissionerate, against the judgment dated 26th Aug., 2014 passed in W.P. 392 of 2014 (Ankit Metal and Power Limited and others Vs. Settlement Commission and others) whereby the learned Single Judge had disposed of the writ petition by passing the following order:-

(3.) Mr. R.N. Das, learned senior advocate for the appellant had submitted that it is apparent from the judgment under challenge that earlier a show cause notice was issued. On that 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 order on that application was passed imposing penalty for concealment of duty particulars. The respondents, in appeal, that is the writ petitioners, had accepted the said order. Under section 32M of the Act those orders passed under section 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 second show cause notice. The respondents filed applications for settlement admitting removal of finished goods without payment of duty and deposited a sum of Rs.15 lakhs in advance. According to him, as on an earlier occasion order was 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 section 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 section 32-O was not under challenge. Had the respondents been aggrieved with the second show cause notice, instead of filing applications for settlement, they should opted for adjudication under the Act.