M/S Asianlak Health Foods Ltd. v. Union Of India And ORS.
!"# $ "%&!'& !"
( ) *+( & $$&&,- . $ /+( & $,$.
!
"# !
$$$$ $&&,- . $ %
! &
'()''*)+ ", - .- /0!
-.. .&
!
& . "
1 ('2342)424 - !
)5662 7 )566!
84 '24 %
.!
.
1
1! -
9'' - /0! % !
)5:+ % -.. - -..
!
':*6'*)+ ! &
1! 1,- /0! ,. & " )(+! "
! ;- /0! . & (* ! , "
<
&
' ,;!
0! ,. & += '+)9"
! . += '+)9 ,
"
& ,;-/>?%! +@ ***9"
! . +@ '5*9 , "
"
"
! .
,
1 ! 1! 1,
, "
.
))- )566 !
)+ -/>?% - '**6 %
",
'+*+'*)+ .
-..
," )(+! &1
,A)+B ))-24
)566!
C
!
& 1 ! !
"
!!
.
))-24 )566!
2D4 %
!
))*@'*)+ ('/
!
1 ! !
':*6'*)+ % - . -
-.. ", .
&
'()''*)+ <
! & <!
! 1" ('2342)424 )566 !
!
)+*6'*)(1 ",
()*)'*)61!"
& , " ):' ! .
, +* ***9 (' 2/424E234 - /0! !
)566 9
(
.
(1) An assessee may, in respect of a case relating to him, make an application, before adjudication, to the Settlement Commission to have the case settled, in such form and in such manner as may be prescribed and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification, under valuation, inapplicability of exemption notification or Cenvat credit or otherwise and any such application shall be disposed of in the manner hereinafter provided: Provided that no such application shall be made unless, (a) the applicant has filed returns showing production, clearance and Central excise duty paid in the prescribed manner;
(b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant;
(c) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and (d) the applicant has paid the additional amount of excise duty accepted by him along with interest due under section 11AA :
Provided further that the Settlement Commission, if it is satisfied that the circumstances exist for not filing the returns referred to in clause (a) of the 1st proviso to sub section (1), may after recording the reasons therefor, allow the application to may such application:
Provided also that no application shall be entertained by the Settlement Commission under this subsection in cases which are pending with the Appellate Tribunal or any court:
Provided also that no application under this subsection shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986).
[(1A)****] [(2)****]
(3) Every application made under subsection (1) shall be accompanied by such fees as may be prescribed.
6
(4) An application made under subsection (1) shall not be allowed to be withdrawn by the applicant.
(1) On receipt of an application under subsection (1) of section 32E, the Settlement Commission shall, within seven days from the date of receipt of the application, issue a notice to the applicant to explain in writing as to why the application made by him should be allowed to be proceeded with, and after taking into consideration the explanation provided by the applicant, the Settlement Commission, shall, within a period of fourteen days from the date of the notice, by an order, allow the application to be proceeded with, or reject the application as the case may be, and the proceedings before the Settlement Commission shall abate on the date of rejection : that where no notice has been issued or no order has been passed within the aforesaid period by the Settlement Commission, the application shall be deemed to have been allowed to be proceeded with.
(2) A copy of every order under subsection (1), shall be sent to the applicant and to the Commissioner of Central Excise having jurisdiction.
(3) Where an application is allowed or deemed to have been allowed to be proceeded with under subsection (1), the Settlement Commission shall, within seven days from the date of order under subsection (1), call for a report along with the relevant records from the Principal Commissioner of Central Excise or Commissioner of Central Excise having jurisdiction and the Commissioner shall furnish the report within a period of thirty days of the receipt of communication from the Settlement Commission :
that where the Commissioner does not furnish the report within the aforesaid period of thirty days, the Settlement Commission shall proceed further in the matter without the report of the Commissioner.
(4) Where a report of the Commissioner called for under subsection (3) has been furnished within the period specified in that subsection, the Settlement Commission may, after examination of such report, if it is of the opinion that any further enquiry or investigation in the matter is necessary, direct, for reasons to be recorded in writing, the Commissioner (Investigation) within fifteen days of the receipt of the report, to make or cause to be made such further enquiry or investigation and furnish a report within a period of ninety days of the receipt of the communication from the Settlement Commission, on the matters covered by the application and any other matter relating to the case :
+ that where the Commissioner (Investigation) does not furnish the report within the aforesaid period, the Settlement Commission shall proceed to pass an order under subsection (5) without such report.
(5) After examination of the records and the report of Principal Commissioner of Central Excise or the Commissioner of Central Excise received under sub section (3), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub section (4), and after giving an opportunity to the applicant and to the Principal Commissioner of Central Excise or Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorized in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of Principal Commissioner of Central Excise or the Commissioner of Central Excise and Commissioner (Investigation) under subsection (3) or subsection (4).
(6) An order under subsection (5) shall not be passed in respect of an application filed [****] after nine months from the last day of the month in which the application was made, failing which the settlement proceedings shall abate, and the adjudicating authority before whom the proceeding at the time of making the application was pending, shall dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made.
that the period specified under this sub section may, for reasons to be recorded in writing, be extended by the Settlement Commission for a further period not exceeding three months.
(7) Subject to the provisions of section 32A, the materials brought on record before the Settlement Commission shall be considered by the Members of the concerned Bench before passing any order under subsection (5) and, in relation to the passing of such order, the provisions of section 32D shall apply.
(8) The order passed under subsection (5) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make the settlement effective and in case of rejection contain the reasons therefore and it shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud or misrepresentation of facts : that the amount of settlement ordered by the Settlement Commission shall not be less than the duty liability admitted by the applicant under section 32E.
=
(9) Where any duty, interest, fine and penalty payable in pursuance of an order under subsection (5) is not paid by the assessee within thirty days of receipt of a copy of the order by him, the amount which remains unpaid, shall be recovered along with interest due thereon, as the sums due to the Central Government by the Central Excise Officer having jurisdiction over the assessee in accordance with the provisions of section 11.
(10) Where a settlement becomes void as provided under subsection (8), the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the Central Excise Officer having jurisdiction may, notwithstanding anything contained in any other provision of this Act, complete such proceedings at any time before the expiry of two years from the date of the receipt of communication that the settlement became void.
(1) Where (i) an order of settlement [xxxx] provides for the imposition of a penalty on the person who made the application under section 32E for settlement, on the ground of concealment of particulars of his duty liability; or
In this clause, the concealment of particulars of duty liability relates to any such concealment made from the Central Excise Officer. (ii) after the passing of an order of settlement [xxxx] in relation to a case, such person is convicted of any offence under this Act in relation to that case; or (iii) the case of such person is sent back to the Central Excise Officer having jurisdiction by the Settlement Commission under section 32L, then, he shall not be entitled to apply for settlement under section 32E in relation to any other matter.
(2) Omitted."
( %
C !
('2342)424 )566!
6 .
!
, "
! C
!
)+*6'*)( 1! 1
@ ", - . -
-..
()*)'*)6 ('2+4
)566!
%
9 !
! !
!. &!.
1& ! !
!
0!"
& 1 ,.
,; 11! !
1 &&
1 && !!1
!
0!"
& 1!
1
& . 1 .
C ! ! 1 ! & . !
C
1! 1,& " )5 !"
!!
'+
- /0! '**'
, '=
"
.
% !
!!
& ! !
!
&
, C .
!!
, " )+*! .'*'! !!
" (*)' ! .
" , !
& "
"
. ! " , !
!
& "
-..%
-.. !
-..
:
!
.! .
.
, ,1
" ):'! % 1 &
"
! !
+* ***9 !! 1.
%
! 9 F 1 !
!!. !
!
D ! ",
! 1&
. ! 9 , 9% D !.
,+* ***9 2 ,4
! .
->% D !.
'+ ***92 %1 , 4 ! !9
! & ... ,.
, 0!
" . ! "< ,.
"
D !& ..
! !9
! . ! !
.
!"
! !!
2
4G + ('2342)424
!
!
))*@'*)+ 1! "< .
. "
1
()*)'*)6& .
,
!
)+*6'*)( 1
-..
()*)'*)6& .
,
!
)(*+'*)( &!!
.
! , " ,
,
('/ , .
1!1 " ,!
!
5 ))*@'*)+ 1! 1 ", .
&
'()''*)+ % !
. && ('234% ('2342)424 ,
!!
.
! , " ,
,!!!
.
. . - /0! 3!
% !
&
-.. .
, &!!
.
! , " ,.
- 3!
1 ! !!
.
. . - . -
-.. = 1 ".
!
8
!
))*@'*)+ % ". " !
('2342)424 1
1 . *=*:'*)6 1 "1!
! . 1
()*)'*)6
".
@ , ! 1
! "
!
% /0 ('2342)4241 "
",- 56D >(+'*)69D &
! - # .
! , '*)69)+ %
3"<
)*
1
! 56 !
D 9 0$( $ $ $ ) % "< D &
! - # .
! , '*)69)+%
!
! D - 56 D
.
! 24" 2)4 ('93 - /0! !
/0 ! , !!
.
! " ,
,!!!
.
. .
- /0! 3!
! 1
!!
.
. - 3!
-.. . &
!
G2
4 :% /0 ! ! ,% .
3"<
D & ! ! ,
! "
# $% #& ' ( ) *+& + - 9
Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as "declaratory statutes". The circumstances under which provisions can be termed as "declaratory statutes" are explained by Justice G.P. Singh [
, (13th Edn., LexisNexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: " The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [ W.F. Craies,
(7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [ : The reference is to
v.
, AIR 1960 SC 12, para 29] : 'For modern purposes a declaratory Act may be defined as an Act to
)) remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word "declared" as well as the word "enacted".' But the use of the words 'it is declared' is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form.
If a new Act is 'to explain' an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language 'shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit.
A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law."
The above summing up is factually based on the judgments of this Court as well as English decisions. (emphasis supplied)."
5 .
3"<
!
('2342)424 ! ! , ('2342)424
0! . ." ! 1
,.
&!!
.
! " ,"
- /0! 3!
% && 1
!!
.
! , "
-.. "
- 3!
!
% &
C
!
, "
)'
,.. &
! ('/ )566 !
!!
! " , !
!
1, !!
.
! "
- 3!
& "
. & !!
.
"
-.. )*
!!. !
/0 ! ! ,
, / " /0 1 1
('2342)424 !
1! .
, & !!
.
! " , . - 3!
H , 1
('2342)424 ! !!
.
! , " , .
-.. )) !!& ,
. 1$&&,- 2 $ 1,$2 )5*('*): Whether speaking/reasoned √ Yes/No Whether Reportable:
√ Yes/No