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TMI Blog2015 (11) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... toms and Central Excise Settlement Commission and Ors.) whereby the learned Single Judge while dismissing the writ petition had upheld the order passed by the Central Excise Settlement Commission (for short 'the Commission') settling the central excise duty at Rs. 1,09,92,429/-, interest at Rs. 13,26,327/- and imposing penalty of Rs. 22 Lakhs on the company and Rs. 15 Lakhs each on the two directors and granting immunity from penalty in excess of the amount and subject to payment of the said amount also immunity from prosecution under the Central Excise Act, 1944 (hereinafter referred to as 'the Act') and the Rules framed thereunder. Mr. Farook, learned senior advocate, relying on the grounds of appeal submitted that since applications wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Director General Directorate General of Central Excise Intelligence, the respondent no. 2, submits that as the appellants filed applications under section 32E of the Act making a full and true disclosure of the duty liability and had thus accepted the amount of excise duty payable by them, they now cannot turn back and challenge the penalty imposed as too excessive. Had there been adjudication and duty liability been established, the appellants, who had admittedly made willful mis-statement under section 11 AC(1)(a), would have been liable to pay penalty equal to duty and would have faced prosecution. However, after having received the show cause notice, the appellants opted for settlement. Once the appellants had opted for settlement a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they cannot opt out from the scheme and thus, the matter cannot be reopened by way of remand. The question which requires consideration is whether the Central Excise Settlement Commission erred in imposing penalty without quantifying the penalty and fine in full. In order to appreciate the issue, it is necessary to set out the relevant portions of sections 32E and 32K of the Act, which are as under : Section 32E. "Application for settlement of cases.- (1) An assessee may, in respect of a case relating to him, make an application, before adjudication, to the Settlement Commission to have the case settled, in such form and in such manner as may be prescribed and containing a full and true disclosure of his duty liability which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns as it may think fit to impose, immunity from prosecution for any offence under this Act and also either wholly or in part from the imposition of any penalty and fine under this Act, with respect to the case covered by the settlement :" (Emphasis supplied) The facts are that on 9th February, 2011, the officers of the Director General of Central Excise Intelligence searched the factory, office and residential premises of the appellants and documents, records and papers were seized. Statement of one of the directors was recorded. According to the appellants, the officers demanded a sum of Rs. 75 Lakhs towards payment of central excise duty which was paid on 18th February, 2011 by post-dates cheques. On 28th December, 2012 show cause-cum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act, with respect to the case covered by the settlement", whether it was incumbent upon the Commission to mention the total amount of penalty imposable before quantifying the amount of penalty directed to be paid. It is to be noted that after show cause notice was issued, the appellants, before adjudication, in accordance with section 32E of the Act, had filed applications for settlement before the Commission disclosing the duty liability at Rs. 1,09,92,429/-. In the instant case the appellants admittedly short paid duty by suppressing facts. Applications were filed disclosing fully and truly the duty liability. Section 32K, inter alia, speaks of immunity wholly or in part from the imposition of any penalty and fine under 'this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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