- (1.) This appeal has been preferred by the writ petitioners against the judgment dated 25th August, 2014, passed in W.P. no. 8711(W) of 2014 (Venky Hi-Tech Ispat Ltd. and Ors. vs- Customs 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.
(2.) Mr. Farook, learned senior advocate, relying on the grounds of appeal submitted that since applications were filed before the Commission under section 32E of the Act making full and true disclosure of the duty liability and section 32K of the Act postulates that penalty may be waived either wholly or in part and as without quantifying the penalty such imposition was made, the imposition of penalty on the company and on each the directors and granting immunity from penalty in excess of the amount make the order not only vague but also unjust and illegal. As settlement of a dispute under the Act is different from adjudication and since the appellants had paid a sum of Rs. 75 lakhs before issuance of the show cause notice, Rs. 24,64,953/- after issuance of the said notice and Rs. 13,27,525/- towards interest, the imposition of such heavy amount of penalty is arbitrary. When the appellants had paid substantial amount of interest on the admitted amount of duty, the Commission should have allowed abatement of duty already paid on the removal of goods under section 4 of the Act. According to him, non-consideration of these vital aspects of the case by the learned trial Judge has resulted in manifest injustice and, therefore, the impugned judgment is liable to be set aside. Since the provisions contained in section 32K have not been followed, section 32M of the Act is not applicable. In support of his submission Mr.Farooque has relied on the judgement in Ashwini Tobacco Co. Pvt. Ltd vs- Union of India, 2010 251 ELT 162 . Mr. Bhardwaj, learned advocate appearing for the Additional 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 admitting the duty liability of Rs. 1,09,92,429/-, they were liable to penalty equal to the duty. Since section 32K authorizes the Commission to grant immunity from prosecution for any offence under the Act and waiver, either fully or partly from penalty and fine, a power which an excise authority does not possess, keeping in mind the disclosures made, the Commission had imposed a total sum of Rs. 22 Lakhs as penalty on the company which is a part of the total penalty and the balance was waived. Since a company cannot be prosecuted, a penalty of Rs.15 lakhs each were also imposed on its two directors payment of which was a condition precedent for immunity from prosecution. Relying on the judgment in Indorama Synthetics (India) Ltd. vs- Union of India, 2013 290 ELT 208 it is submitted that since settlement is a package in a statutory form, the appellants cannot now opt out after accepting a part of the order. Mr. R.N. Das, learned senior advocate appearing for the Commissioner of Central Excise, Bolpur Commissionerate, the respondent no. 3, reiterating the submission made by Mr. Bhardwaj submits since an order of settlement passed under section 32 K is conclusive under section 32M of the Act and as the vires of the said provisions have not been challenged and as the appellants in their respective applications had admitted clandestine removal of goods and admitted the duty liability and while paying the duty they were quite aware that penalty is equal to duty evaded, they cannot opt out from the scheme and thus, the matter cannot be reopened by way of remand.
(3.) 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 not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty 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, under-valuation, inapplicability of exemption notification of CENVAT credit or otherwise 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 duty paid in the prescribed manner ; (b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant ; (c) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and (d) the applicant has paid the additional amount of excise duty accepted by him along with interest due under section 11AA." Section 32K : "Power of Settlement Commission to grant immunity from prosecution and penalty (1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions 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 :";