TMI Blog2010 (8) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... S/Shri S.S. Sekhan with Ms. Padmavati Patil i/by M.H. Patil, for the Petitioner. Shri R.B. Pardeshi, for the Respondent. [Judgment per : V.C. Daga, J. (Oral)] This petition filed under Article 226 of the Constitution of India is directed against the order dated 2-6-2006 passed by the Settlement Commission (Customs and Central Excise) Mumbai directing the Petitioner to pay duty in the sum of Rs. 33,96,718/-. The Petitioner being aggrieved by the said part of the order has invoked writ jurisdiction of this court. The Facts : 2. The facts giving rise to the present petition in nutshell are as under : The Petitioners are 100% Export Oriented Unit (EOU), engaged in the manufacture of Vegetable extracts U/Chapter 13 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962. It was also alleged that they were issuing invoices suppressing the fact in the statutory returns ER-2; and that they having evaded payment of duty leviable on the goods have rendered themselves liable to pay duty, penalty and interest. The petitioners replied to the said show cause notice. They were heard. 7. The demand was confirmed by the Additional Commissioner, Central Excise, Raigad in the sum of Rs. 33,96,718/- with interest u/s. 11AB together with equal penalty u/s. 11AC of the Act. In addition to this personal penalty of Rs. 10 lakhs was imposed on the Managing Director u/r. 26 of Central Excise Rules, 2002. 8. The Petitioners filed an appeal before the Commissioner (Appeals) and pending the decision of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered in the SCN (P/39 41) Order-in Original (P/55) Rs. 59,76,771.00 (ii) Correct assessable value after excluding the element of duty @ 30% BCD, 16% CVD and 4% SAD Rs. 38,10,987.06 (iii) Basic Customs Duty @ 30% Rs. 11,43,296.12 (iv) Assessable Value for the purpose of CVD Rs. 49,54,283.18 (v) CVD @ 16% Rs. 7,92,685.31 (vi) Assessable Value for the purpose of SAD Rs. 57,46,968.49 (vii) SAD @ 4% Rs. 2,29,878.74 12. The Petitioner based on the above calculations reiterates that the correct amount of duty payable by invoking cum duty would be Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdeshi further urged that the issue relating to cum duty dealt with in the case of Maruti was discussed and explained by the Apex Court in the subsequent Judgment in the case of Amrit Agro Industries Ltd. v. CCE reported in - 2007 (210) E.L.T. 183 (S.C.), wherein the Apex Court observed that in absence of payment of duty the question of abatement under Section 4(4)(d)(ii) of CEA, 1944 does not arise. He also placed reliance on the judgment of the Apex Court in the case of Assistant Commissioner, Central Excise v. Bata India, reported in 1996 (84) E.L.T. 164 (S.C.) and Jyotindrasinghji v. S.I. Tripathi - AIR 1993 SC 1991 wherein the Apex Court held that the entire proceedings before the Settlement Commission were in the form of package deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the said Act is final and conclusive is stated to be rejected. The orders of the Settlement Commission are amenable to the writ jurisdiction and the judicial review thereof is permissible under Article 226 of the Constitution of India as held by the Hon ble Supreme Court in the Case of Jyotendrasinhji v. S.I. Tripathi - 1993 Supp (3) SCC 389. In the case in band, not only the decision but also the decision making process is not in accordance with the law since the Settlement Commission has not followed the provisions of Rule 5(3) of the Valuation Rules which are part of the Act. 19. In the present case core issue raised by the Petitioner based on various provisions of the Central Excise and Customs Act were brushed aside by the Set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusion reached , (vide : Krishna Swami v. Union of India Ors. - AIR 1993 SC 1407). 24. Therefore, the law on the issue can be summarized to the effect that, while deciding the case, Court is under an obligation to record reasons, however, brief, the same may be as it is a requirement of principles of natural justice. Non- observance of the said principle would vitiate the judicial order. 25. As observed by theApex Courtin the case of Jyotendrasinghji v. Tripathi the writ court is entitled to know the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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