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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 ..... ioner 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 Commissioner of Central Excise. In the second writ petition, stay was granted on condition that the petitioner shall deposit Rs.50,000/- to the credit of the second respondent. The interim orders have also been complied with. Aggrieved by the orders passed by this court, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 12.7.2005 in respect of seized goods and proposed to confiscate the same as well as to impose penalty under Rule 25 of the Central Excise Rules. The show cause notice, dated 12.7.2005 was issued within six months from the date of seizure i.e. 28.1.2005. An another show cause notice, dated 8.8.2006 was also issued to the petitioner demanding payment of Rs.99,01,979/- for a period from 2001-2002 to 2004-2005 under the proviso to Section 11A(1) of the Central Excise Act. A demand was also made for interest under Section 11 AB and penalty was also proposed under Sectin 11 AC read with Rule 25 of the Central Excise Rules. Section 31 to 32 PA of the Central Excise Act provides for settling the cases by the Settlement Commission. Instead of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany had also undertaken to discharge the duty amount of Rs.32,878/- in respect of seized goods. Hence the company had paid the entire amount. 6.However, the Settlement Commission by its final order, dated 28.2.2008 settled the case on condition that duty liability for an unaccounted clearance was settled at Rs.21,13,836/- against which the petitioner had already paid Rs.21,27,803/-. The seized goods should also be released by the appropriate authority on payment of appropriate duty of Rs.32,878/-, a part of which had already been paid. The petitioners were also granted immunity in excess of 10% simple interest per annum on the duty liability from the date it became payable till the date of actual payment. The revenue was directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; 10.The question whether the petitioners made full disclosure of facts at the earliest opportunity is essentially a question of fact. The division bench itself had noted that the petitioners did not make full disclosure at the earliest opportunity thereby disqualifying itself from receiving any benefit. Secondly, after approaching the Settlement Commission, they cannot come before this court for improving their concession. 11.Mr.S.Renganathan, learned counsel for the petitioners placed reliance upon a judgment of a division bench of Bombay High Court in Union of India Vs. Hoganas India Ltd. Reported in 2006 (199) E.L.T. 8 (Bom) for contending that the Settlement Commission has wide power to settle the matters including confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 327 (Bom.) to contend that the Settlement Commission was not empowered to impose penalty without complying with the statutory requirement. 15.Per contra, Mr.S.Annamalai, learned counsel for the respondents Department referred to a judgment of the Supreme Court in Sanghvi Reconditioners Private Limited Vs. Union of India and others reported in 2010 (2) SCC 733, wherein the Supreme Court considered the similar provisions under the Customs Act and held in paragraphs 36 and 37 as follows: "36.We also find substance in the contention of the learned counsel for the Revenue that having observed that the appellant had not made a full and true disclosure, their application should have been rejected by the Settlement Commission on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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