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TMI Blog2011 (1) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner - the very maintainability of the writ petitions is doubtful since the petitioners had already availed the remedy before the Settlement Commission - Hence both writ petitions will stand dismissed - W.P.(MD)NO.5705 of 2009, W.P.(MD)NO.and 5706 of 2009 - - - Dated:- 28-1-2011 - MR.JUSTICE K.CHANDRU, J. For Petitioners ... Mr.S.Renganathan For Respondents ... Mr.S.Annamalai COMMON ORDER In the first writ petition, the petitioner challenges an order, dated 9.6.2009 passed by the first respondent Customs and Central Excise Settlement Commission insofar as it relates to the conditional order of levy of penalty of Rs.2,20,000/- and seeks to set aside the same. In that writ petition, the petitioner is M/s.Goodwill Team Paper Limited represented by its Managing Director P.Rajendran. The very same Managing Director in his individual capacity challenged the same order but insofar as it relates to levy of penalty of Rs.1 lakh. 2.Both writ petitions were admitted on 3.7.2009. Pending writ petitions, this court granted an interim stay in the first writ petition on condition that the petitioner shall deposit Rs.1 lakh to the credit of the second respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 31 to 32 PA of the Central Excise Act provides for settling the cases by the Settlement Commission. Instead of going before the adjudicating process, the petitioners had approached the Settlement Commission, Chennai Bench, i.e. first respondent and had admitted the liability to an extent of Rs.13,67,944/-. The Central Bank of India had also initiated proceedings before the DRT as well as under the SARFAESI act. The petitioner had pleaded for waiver of penalty and prosecution proceedings as well as redemption fine in respect of seizure while admitting to pay duty on such seized goods. 5.Their application was numbered as S.A.(E)No.70 of 2007. The first respondent Settlement Commission by an interim order, dated 22.5.2007 passed an order directing the petitioner to re-examine the admitted duty liability and to come with true and full disclosure. The first respondent had also directed the Revenue Authorities to assist the petitioner company for arriving at the correct duty liability. As per the direction, dated 31.5.2007 of the Settlement Commission, the petitioner had paid duty of Rs.13,67,944/- before 30.6.2007. The case was posted for hearing on 22.11.2007. The Settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the request of the petitioner strictly in accordance with law after affording sufficient opportunity. Insofar as the interest ordered to be paid, no interference was called for. A writ appeal was filed against the said order in W.A.(MD)No.764 of 2008 only against the order of confirmation of interest in the writ petition. The writ appeal was also dismissed on 18.6.2009. Subsequent on remand by this court, the Settlement Commission reheard the case on 27.5.2009 in respect of levy of penalty and confirmed the levy penalty of Rs.2,20,000/-. 8.The contention raised was levy of penalty was contrary to Section 32F(7) read with Section 32K(1) of the Central Excise Act. Since the entire duty amount has been paid before passing of the impugned order, the first respondent should have considered the same. The first respondent also did not consider the sickness of the petitioner company. The condition imposing penalty was also arbitrary. Once immunity against prosecution was granted, an immunity from penalty must also be granted. 9.In the counter affidavit filed by the respondents, it was claimed that the Settlement Commission had taken note of the entirety of facts and also found at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the beginning of the proceedings till its conclusion. The requirement of full and true disclosure need not be examined and authoritatively determined at the threshold. 13.Further reference was also made to the judgment of the Supreme Court wherein the decision of the Delhi High Court referred to above came to be considered. The Supreme Court held as follows: "The Delhi High Court in its impugned order had held that the requirement of a full and true disclosure of liability need not be examined and authoritatively determined at threshold of any proceedings initiated before Settlement Commission under Section 32E of Central Excise Act, 1944. It further held that Commission is free to examine issue regarding full and true disclosure of liability before passing any final order as also Commission may be justified in throwing out application at any stage if it comes to conclusion that disclosure made by assessee is either incomplete or untrue." 14.The learned counsel also placed reliance upon a judgment of the Bombay Division bench in Arora Fibres Ltd. Vs. Union of India reported in 2009 (243) E.L.T. 327 (Bom.) to contend that the Settlement Commission was not empowere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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