JUDGMENT: 1. THE petitioners herein, a company incorporated under the provisions of the Companies Act 1956, were subjected to a proceeding initiated under the Central Excise Act 1944 on the allegation of wrongly availing MODVAT credit. Initially a notice to show cause was issued to the petitioners to which they filed their response. Thereafter, an order was passed by the Joint Commissioner Central Excise, Bolpur (being the adjudicator authority), confirming a demand of Rs. 6,36,291. 24. In the order, an equivalent sum as penalty in terms of Rule 571 (4) of Central Excise Rules 1944 was imposed, along, with interest on the amount of credit disallowed. The petitioners preferred an appeal against the order but was unsuccessful before the appellate authority, being the Commissioner, Central Excise (Appeals), Kolkata-IV. At the admission stage of the appeal and the petition for stay of operation of the order of the adjudicatory authority, the principal amount held to be due was directed to be deposited as pre-deposit by the appellate authority. 2. THE appellate authority found no reason to interfere with the order of the adjudicatory authority and rejected the appeal. In the order rejecting the appeal, the appellate authority directed appropriation of the amount which was deposited by the petitioners. The petitioners, thereafter, instead of carrying the dispute to a higher forum, preferred to apply before the Customs and Central Excise Settlement Commission (which I shall henceforth describe as the "commission") constituted under the provisions of section 32 of the Central Excise Act, 1944 for settling the dispute. It appears that in that application before the Commission, prayer was made for settlement of duty, waiver of interest and immunity from penalty. The Commission, by an order passed on 13th November 2006 rejected the application on the ground that the date on which the application was made, no case was pending. The operative part of this order, along with the reason given by the Commission for such rejection, is reproduced below:- "5. We have heard both the parties, perused record and considered the circumstances of the case. Section 32e (1) of the Act, says "an assessee may, at any stage of a case relating to him make an application in such form and in such manner as may be prescribed, containing a full and true disclosure of his duty, liability which has not been disclosed before the central Excise Officer having jurisdiction. . . Section 32e (1) of the Act, says "an assessee may, at any stage of a case relating to him make an application in such form and in such manner as may be prescribed, containing a full and true disclosure of his duty, liability which has not been disclosed before the central Excise Officer having jurisdiction. . . . . " (underline supplied by us ). Section 31 [c] defines - "case" means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, or any proceeding by way of appeal or revision in connection with such levy assessment or collection, which may be pending before a Central Excise Officer or Central Govt. on the date on which an application under sub-section (1) of Section 32e is made (underline supplied by us). A plain reading of both the sub-sections makes it clear that that a case must he pending before a Central Excise Officer on the date of filing settlement application. The applicant has been made on 07. 08. 2006 but the appellate order of the Revenue has been passed on 30. 11. 2005. No case was, therefore, pending before a Central Excise officer on the date on which the application under section 32e (1) was made. Therefore, there was no case pending on the date of the application before a Central Excise officer. The application is, therefore, rejected. " 3. IN this writ petition, the petitioners challenge the legality of this order. The basic question which fails for determination in this writ petition is as to whether in the given facts, any "case" could be said to have been pending on the date the application for settlement was made, as pendency of a "case" is the pre-requisite for maintaining an application for settlement in terms of section 32e of the Act. The said provision is reproduced below: "section 32e. Application for settlement of cases. The said provision is reproduced below: "section 32e. Application for settlement of cases. (1) An assessee may, at any stage of a case relating to him make an application 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 duly 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 or otherwise of such excisable goods, to the Settlement Commission to have the case settled 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 duly paid in the prescribed manner; (b) a show cause notice for recovery of duly issued by the Central Excise Officer has been received by the applicant; and (c) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees: provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending with the Appellate Tribunal or any Court: provided also that no application under this sub-section shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986 ). (2) Where any excisable goods, books of accounts, other documents have been seized under the provisions of this Act or rules made there under, the assessee shall not be entitled to make an application under sub-section (1), before the expiry of one hundred and eighty days from the date of the seizure. (3) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed. (4) An application made under sub-section (1) shall not be allowed to be allowed to be withdrawn by the applicant. " 4. (3) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed. (4) An application made under sub-section (1) shall not be allowed to be allowed to be withdrawn by the applicant. " 4. THE expression "case" has been defined in section 31 (c) of the Act, which is reproduced below: "case" means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duly, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before a Central Excise Officer or Central Government on the date on which an application under sub-section (1) of section 32e is made: provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act and which has not been admitted, such appeal or revision shall not be deemed to be a proceeding within the meaning of this clause:" In the case of the petitioners, the order was passed on 30th June 2005 by the adjudicatory authority confirming the demand made under section 11a of the Act, as also imposing penalty in terms of Rule 57 (1) (4) of the Central Excise Rules 1944. This order also provided for payment of interest as per the provisions of Rule 57 (1) (3) of the said Rules. The appellate authority confirmed the order of the adjudicatory authority on 30th November 2005, and directed appropriation of the sum of Rs. 6,36,291. 24/-, being the duty demanded. This amount was deposited by the petitioners as per direction of the Commissioner (appeals) as pre-deposit. The petitioners' application before the Settlement Commission was made on 7th August 2006. 5. MR. Chowdhury, learned counsel appearing for the petitioners assailed this order of rejection, mainly on the ground that on the day the application for settlement was filed, the process of appropriation was not complete, and the penalty directed to be paid was still to be realised. His case is that a proceeding for realisation of duty is not concluded until the process of collection is complete. His case is that a proceeding for realisation of duty is not concluded until the process of collection is complete. In the present case, he argued, since penalty imposed by the adjudicatory authority was still to be collected, the "case" as defined under the provisions of section 31 [c] of the Act was still pending in the case of the petitioners. He also sought to emphasise on the distinction between levy and collection of duty relying on two authorities, being the cases of N. B. Sanjana, Assistant Collector of Central Excise, Bombay and Ors. v. The Elphinstone Spinning and Weaving Mills Co. Ltd. 1978 (2) E. L. T. (J 399) (S. C.) and Commissioner of Central Excise, Calcutta v. Hindustan National Glass and Industries Ltd. 2005 (182) E. L. T. 12 (S. C.) in support of his submissions that if the collection in terms of an order of the excise authorities remain to be effected, the case could not be held to be complete. 6. MR. Tarafdar, learned counsel appearing for the revenue authorities agreed to contest the writ petition without filing of any affidavits, as this writ petition involved adjudication on questions of law only. The submission of the revenue authorities is that upon passing of the order of appropriation, there was no proceeding left for collection of any duty under the Central Excise act, 1944. Mr. Tarafdar took me through the definition of "case" as stipulated in section 31 [c] of the Act, and argued that to come within the ambit of the aforesaid provision, a proceeding would have to be relatable to levy, assessment and collection of duty only. His submission is that the mere fact that 'penalty' or 'interest' in terms of the orders of the adjudicatory or appellate fora under the Act remains to be collected, and that too without any proceeding being initiated for their recovery, cannot lead to an inference that a "case" within the meaning of the aforesaid provision of the Act was pending. He submitted that there is substantial difference between the meaning of the expressions "duty", and "penalty", and he referred to a decision of the Hon'ble Supreme Court in the case of M/s. Chhotabhaiv. Union of India reported in AIR 1962 SC 1006 to explain the meaning of the term "duty". He submitted that there is substantial difference between the meaning of the expressions "duty", and "penalty", and he referred to a decision of the Hon'ble Supreme Court in the case of M/s. Chhotabhaiv. Union of India reported in AIR 1962 SC 1006 to explain the meaning of the term "duty". His case is that even if "penalty" and "interest" remains to be collected, and a proceeding for such collection remains pending, such proceeding could not be treated as a case under the provisions of section 31 [c] of the Act. Analysing the said provision (i. e. the definition of 'case'), he contended that such "case" must be in relation to levy, assessment or collection of duty, and not penalty or interest. I accept Mr. Chowdhury's submission that the expressions "levy" and "collection" in relation to excise duty have independent connotations. The two decisions cited by him are clear authorities on this point. The definition of a case under the provisions of section 31[c] of the Act also refers to the terms "levy", "assessment" and "collection" independently. However, I am unable to agree with his submission that the process of appropriation of the sum deposited by him was not complete in the present case when the application for settlement was filed. The entire sum demanded as duty was deposited by his clients with the authorities. This was by way of pre-deposit in terms of an order of the appellate authority. The same authority, in its final order, had directed appropriation of the said sum. It does not appear to me that any further step was required to be taken for completion of the process of appropriation. 7. THE question that needs to be addressed now is if the appellate authority under the Act passes an order upholding the demand for realisation of duty imposes penalty and directs payment of interest, and only penalty and interest remains to be realised and other part of the order stands compiled with, whether a "case" could be said to be pending on the ground that the recovery of penalty and interest still remains to be recovered. The Hon'ble Supreme Court, in the case of Chhotabhai (supra) examined the meaning of "excise duty", and observed: "in our view, a duty of excise is tax-levy on home produced goods of a specified class or description, the duty being calculated according to the quantity or value of the goods and which is levied because of the mere factyof the goods having been produced or manufactured and unrelated to and not dependent on any commercial transaction in them. . . . . . . . . . . . " 8. IN section 11 of the Act, which lays down the manner in which recovery of sums due under the Act is to be made by the authorities, the term "duty" and "any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made there under. . . . . . " have been referred to separately, and the other sums have not been treated as component of duty. It is quite clear, thus, "penalty" and "interest" cannot be treated to be part or component of the term "duty" under the provisions of the Act. Each of these terms under the Act has independent attributes, and for their imposition, different factors are to be considered and different conditions are required to be satisfied. Now turning to the facts of the present case, can it be said that at the time when the application for settlement was made, any proceeding for levy, assessment or collection of duty was pending? The case of the revenue authorities is that if any proceeding at all was pending at that point of time, it was proceeding for collection penalty and interest. But to maintain an application for settlement, pendency of a proceeding for levy, assessment or collection of duty was necessary. Since the entire duty as assessed stood appropriated in terms of the order of the appellate authority, the Commission was right in rejecting the application for settlement. 9. I find that the origin of the subject-proceeding lies in the issuance of the notice to show cause. The "case" against the petitioner originated from this instrument, in which allegation was made of suppression of facts with a malafide intention to misuse Central Excise duty. 9. I find that the origin of the subject-proceeding lies in the issuance of the notice to show cause. The "case" against the petitioner originated from this instrument, in which allegation was made of suppression of facts with a malafide intention to misuse Central Excise duty. The nature of violations alleged against the petitioners is summarised in paragraph 4 of this notice which is reproduced below: "this appears to be clear case of suppression of facts mis-statement/mis-declaration with a malafide intention to misuse CE duty in the disguise of passing on modvat credit under Rule 57gg on the part of the said dealers as discussed in para 2 above and thereby attracts proviso to sec 114 of CE and Salt Act'44. " So far as the proceeding initiated by this notice is concerned, there cannot be any doubt that the same related to assessment and collection of duty. 10. THE order of the adjudicatory authority was in connection with a case for assessment and collection of excise duty. It is a fact that after passing of the order by the appellate authority, the only part of the case which originated from the notice to show-cause and remained to be concluded was realisation of penalty and interest. I am, however, unable to accept the submission of the revenue authorities that at that point of time, the proceeding had lost its characteristic of a case within the meaning of section 31 [c] of the Act, because no duty was left to be collected at that point of time. As I have observed earlier, the "case" in this matter commenced with the issuance of notice to show cause. This case continued when the proceeding was pending before the adjudicatory authority and the appellate authority. Since the definition of "case" involves proceeding for collection of duty also, the case in my opinion, would not conclude till entire collection is made. In the instant matter, admittedly "penalty" and "interest" imposed by the adjudicatory authority and confirmed by the appellate authority remains to be collected or realised. But such collection is to be made in connection with the original proceeding only, initiated by the notice to show cause. In the instant matter, admittedly "penalty" and "interest" imposed by the adjudicatory authority and confirmed by the appellate authority remains to be collected or realised. But such collection is to be made in connection with the original proceeding only, initiated by the notice to show cause. I do not think that just because no further "duty" element is left to be realised, the proceeding against the petitioner, in which "penalty" and "interest" are left to be recovered, gets divested of its character as a case. I do not think that such truncated meaning of a "case" is contemplated in the Act. 11. PENALTY has been imposed and interest has been directed to be paid in the instant matter only in connection with the case relating to assessment and collection of duty and in my opinion these two components, i. e. 'penalty' and 'interest' in the order of the adjudicatory authority does not acquire independent attributes, which would have given rise to a new 'case' altogether. I am of the view that till the sums stipulated to be penalty and interest are realised, the original case could not be said to have been concluded, since such collection of penalty and interest is to be made in pursuance of directions given the original case only. The question of penalty and interest cannot be detached from the main case. And collection of such penalty and interest is to be made by a central excise officer only. Thus, in these circumstances in the instant case, the case should be deemed to be pending before a central excise officer only. 12. MR. Tarafdar had also argued that though penalty and interest remained to be collected from the petitioners at the material point of time, no proceeding was initiated to ensure such recovery and hence no "case" at that point of time, was pending before any central excise officer. But this stand, in my opinion, is an over technical approach on the part of the revenue authorities. Such an interpretation of law, if accepted would imply that the petitioners' right to apply before the Settlement Commission stood extinguished on the day the application was made but same would have revived immediately on the revenue authorities taking legal steps to collect the dues under these heads. Such an interpretation of law, if accepted would imply that the petitioners' right to apply before the Settlement Commission stood extinguished on the day the application was made but same would have revived immediately on the revenue authorities taking legal steps to collect the dues under these heads. Until the power of the revenue authorities lapse under the law for recovering the dues under the heads of penalty and interest by efflux of time or otherwise, the "case" within the meaning of section 31[c] of the Act would lie dormant, but cannot be said to have been concluded. And if the case lies dormant, the petitioner will be entitled to approach the Settlement Commission during this stage. I am accordingly of the view that since the application for settlement was made in connection with the case involving assessment and collection of duty, the Settlement Commission was wrong in rejecting the petitioner's application on the grounds which I have referred to above. 13. UNDER these circumstances, the impugned order is set aside and I direct the Settlement Commission to reconsider the petitioner's application in the light of the observations made above. The writ petition stands allowed in the above terms. There shall, however, be no order as to costs. Writ petition succeeds.