2015 (10) TMI 374 - HC - Central Excise

Challenge to the order of Settlement Commission - in so far as it denied the benefit of proviso to Section 11-AC - reduction of penalty - further prayed for a writ of mandamus commanding the respondents to refund the excess amount of 75% deposited towards penalty. - Clandestine removal - Pan Masala, commonly known as Gutka - Held that - the adjudicating order requires the quantification of the penalty to be made in terms of the first and second proviso of Section 11AC of the Act so that an incentive is given to the assessee to pay the duty and interest within the stipulated period in order to avail payment of duty at reduced rate of 25%, failing which, the total amount of penalty becomes payable. This option was not given in the instant case by the Settlement Commission and, therefore, to that extent the order of the Settlement Commission imposing penalty is in violation of the first proviso to Section 11AC of the Act. The Commission is required to pass orders in consonance with the provisions of the Act and cannot settle the case dehors the provisions of the Act. The Commission has the powers to waive the penalty, but, if it does not do so and imposes penalty, it can only do so in consonance with the provisions of the Act. The Commission cannot pass an order of penalty which over rides the provision of Section 11AC of the Act. The order of the Commission stands modified to the extent that, in the event, the petitioners pays the duty and interest determined within the stipulated period as provided under the first and second proviso to Section 11AC of the Act and the petitioners also pays 25% of the penalty so determined within the stipulated period as provided in the second proviso, in which case the petitioners would be entitled for the refund of the excess amount. - Decided in favor of assessee.

Issues Involved:
1. Legality of the penalty imposed by the Settlement Commission.
2. Applicability of the proviso to Section 11AC of the Central Excise Act.
3. Jurisdiction and powers of the Settlement Commission.
4. Entitlement to refund of excess penalty paid.

Detailed Analysis:

1. Legality of the Penalty Imposed by the Settlement Commission:
The petitioners challenged the penalty imposed by the Settlement Commission, arguing it was almost 100% of the duty assessed, which they claimed was erroneous and against the provisions of the Act. The court held that the Settlement Commission's order imposing a penalty almost equivalent to 100% of the duty payable was not in consonance with the first proviso to Section 11AC of the Act. The court emphasized that the Commission must pass orders in accordance with the provisions of the Act and cannot override the statutory provisions regarding penalty.

2. Applicability of the Proviso to Section 11AC of the Central Excise Act:
The court examined the first and second proviso to Section 11AC, which stipulates that if the duty and interest are paid within 30 days from the communication of the order, the penalty should be 25% of the duty determined. The court found that the Settlement Commission failed to provide this option to the petitioners, which was a violation of the statutory provisions. The court reiterated that this provision is beneficial to both the Department and the assessee, ensuring speedy recovery of the disputed amount.

3. Jurisdiction and Powers of the Settlement Commission:
The court analyzed the powers and procedures of the Settlement Commission under Sections 32E, 32F, and 32I of the Act. It held that the Commission has exclusive jurisdiction to exercise the powers of a Central Excise Officer and must determine the duty, interest, and penalty in accordance with the Act. The Commission cannot settle a case "dehors" the provisions of the Act and must adhere to the statutory framework while passing orders.

4. Entitlement to Refund of Excess Penalty Paid:
The petitioners sought a refund of the excess penalty paid, arguing that they were entitled to the benefit of the reduced penalty under the first proviso to Section 11AC. The court directed the Assistant Commissioner, Central Excise, to process the petitioners' application for a refund. If it was found that the duty, interest, and 25% of the penalty were paid within the stipulated period, the balance amount should be refunded to the petitioners.

Conclusion:
The court allowed the writ petition in part, holding that the Settlement Commission's order quantifying the penalty almost to the extent of 100% of the duty was incorrect and not in consonance with the first and second proviso to Section 11AC of the Act. The court directed the competent authority to process the refund application and refund the excess amount if the conditions under the proviso to Section 11AC were met. The parties were directed to bear their own costs.

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