A.Y. KOGJE, J.

1. This petition under Article 226 of the Constitution of India is filed for issuance of an appropriate writ for setting aside the order of the Settlement Commission. By the impugned order, the application under the scheme of settlement filed under Section 32 of the Central Excise Act, 1944 came to be rejected.

2. The facts in brief are that the petitioner is engaged in the service of security agency and manpower recruiting agency. It is registered with the Service Tax Department. Pursuant to the premises visited by the officers of the Service Tax Department on 19.02.2013, a show cause notice dated 18.04.2013 came to be issued. It is the case of the petitioner that on account of prevailing fluid situation about applicability of the service tax to security service agency, the service tax was not paid for the particular disputed period. However, after the visit by the officers, the service tax was substantially paid.

2.1 The petitioner thereafter filed an application, making true and full disclosures of its service tax liability. The application for settlement was heard by the Settlement Commission. According to the petitioner, the Commission heard the application on 12.06.2014 on the ground of admissibility and thereafter, by an intimation letter dated 19.12.2014, fixed personal hearing on 08.01.2015 and thereafter, by the impugned order dated 30.01.2015, rejected such application on the ground of non-admissibility.

3. Learned Advocate for the petitioners submitted that the Settlement Commission erroneously rejected petitioners’ application on the ground of non-filing of returns. The petitioners were, in fact, paying the service tax in connection with their other branches. It is submitted that once the petitioners were heard on the ground of admissibility and the matter was fixed for personal hearing, meaning thereby, the application ought to have been considered on merits rather than on admissibility.

3.1 Learned Advocate for the petitioners submitted that in view of provisions of Section 32(F)(1), the ground of non-filing of returns is not sustainable. It is submitted that the observations of the Commission of non-filing of returns is de hors the statute itself.

3.2 It is submitted that the Commission has committed an error in rejecting the application by observing that the petitioners have not deposited the amount declared in their application. It is submitted that in absence of any dispute to the declaration made by the petitioners, non-deposit of fill amount of the disclosure, may not be the ground for rejecting such application. It is submitted that short deposit is attributable to the human error in calculating the service tax and interest thereon and was completely unintentional. It is submitted that in any case, the Settlement Commission ought to have given an opportunity to make good the short payment, which the petitioners, upon realizing the calculation error, would always be ready and willing to deposit.

4. As against this, learned Advocate for the Department, referring to the affidavit in reply on behalf of the Service Tax Division, submitted that the order of the Settlement Commission is justified in view of the proviso to Section 32E(1) of the Central Excise Act. It is submitted that for the period between April 2007 to September 2007, the petitioner has not paid service tax or filed ST-3 returns. It is submitted that the explanation given with regard to non-filing of returns for such period, was not acceptable as another branch of the petitioner located at Dehradun has filed half yearly returns and ST-3 form for the identical period. It is submitted that the petitioners have also not paid the admitted service tax liability and therefore, in view of proviso to Section 32E(d), the application even otherwise could not have been entertained. It is submitted that the application before the Settlement Commission could not be admitted even on the ground of pending application before the Tribunal in c