By TIOL News Service

MUMBAI, SEPT 20, 2016: THIS is an appeal filed this year against an order-in-original passed by the CCE, Mumbai in December 1998. The appeal is accompanied by a Miscellaneous application for Condonation of delay.

The appellant has deposited the amount as mandated u/s 35F of the CEA, 1944.

The Bench took up the miscellaneous application filed.

The appellant informed that appeal was filed as the department had started recovery proceedings against the appellant.

It is also informed that in the first round of litigation the o-in-o was contested on merits and against the pre-deposit order of the Tribunal they had approached the Bombay High Court when they got some relief. That during the intervening period, there was a provision in the statute [32PA of CEA, 1944] which permitted the appellant to withdraw the appeal and file application for Settlement and which they exercised. However, the Settlement Commission re-allocated the matter back to the Central Excise officer.

It is further submitted that against such order they filed a writ petition but the High Court upheld the order and the operative portion of the order mentioned that the concerned Central Excise Officer should finally dispose the matter as per the directions of the Settlement Commission.

The appellant added that no action was undertaken by the adjudicating authority or the Central Excise Officer for 17 years but on 11.04.2016 a recovery letter was issued to them against the said impugned order and hence they have filed this appeal with prayer to condone the delay.

The Bench observed -

++ Firstly we find that the appellant in the first round of litigation itself instead of depositing and reporting compliance of the stay order passed by this Tribunal for pre-deposit, preferred an appeal to High Court wherein the High Court upheld the order of Tribunal; an appeal to Apex Court has also failed.

++ Secondly, the order of the Tribunal for pre-deposit for hearing and disposing of the appeal is also confirmed by the Supreme Court. The appellant has availed the benefit of provisions; withdrew the appeal from Tribunal and approached the Settlement Commission. Action of appellant in withdrawal of an appeal after disposal of stay petition, would amount to seeking remedies elsewhere i.e. before Settlement Commission, in our view this action of appellant indicates he has preferred to invoke jurisdiction of another fora, hence no case is made out for condonation of delay. Further, having invoked jurisdiction of Settlement Commission and obtained an order which is affirmed by High Court, which has become final, now cannot plead for condonation of delay in filing this appeal. Appellant should have followed up the issue with the Central Excise Officer. In our view, appellant has not made out any case for condonation of delay of 17 years in filing appeal before this Tribunal. Accordingly the application for condonation of delay is dismissed.

++ As to the action to be taken by Central Excise Officer, who presumably is the adjudicating authority, will decide the case afresh without getting influenced by earlier order passed in adjudication and also observation made by Settlement Commission.

The application made for stay from the recovery proceedings was disposed of and the appeal was dismissed.

In passing: Interestingly, section 32PA[ Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission ] of the CEA, 1944 inserted by FA, 2000 (w.e.f 12.05.2000) & amended by FA, 2005 (w.e.f 13.05.2005) carried the following sub-sections -

(6) An application made to the Settlement Commission under this section shall be deemed to be an application made under sub-section (1) of section 32E and the provisions of this Chapter, except sub-section (11) of [section 32F and sub-section (1) of Section 32L] @ , shall apply accordingly.

(7) Where an application made to the Settlement Commission under this section is not is not entertained by the Settlement Commission, then, the appeal shall be deemed to have been revived before the Appellate Tribunal and the provisions contained in section 35B, section 35C and section 35D shall, so far as may be, apply accordingly.

(8) # The Settlement Commission may, if it is of opinion that any person who made an application under sub-section ( 5) has not co-operated with the proceedings before it, send the case back to the Appellate Tribunal and the provisions containing in section 35B, section 35C and section 35D shall, so far as may be, apply accordingly.

@ & # - amendments made by FA, 2005.

Section 32L(1) reads -

(1) The Settlement Commission may, if it is of opinion that any person who made an application for settlement under section 32E has not co-operated with the Settlement Commission in the proceedings before it, send the Case back to the Central Excise Officer having jurisdiction who shall thereupon dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made.

(See 2016-TIOL-2470-CESTAT-MUM)