TMI Blog2015 (11) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, for calculation of penalty and fine, section 11AC of ‘this Act’, that is, Central Excise Act, 1944, is applicable. Keeping the statutory provisions in mind, under section 11AC, in a regular adjudication, the appellants would have been subjected to payment of penalty equal to duty found to have been evaded. In the instant case the appellants disclosed that the whole amount of duty evaded was ₹ 1,09,92,429/-. Hence, the appellants were liable to pay an equal amount of penalty, that is ₹ 1,09,92,429/-. As section 32 K empowers the Settlement Commission to reduce penalty and fine and to grant immunity from prosecution, a power a central excise officer does not possess under regular adjudication, the Commission had passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 vag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral 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 ₹ 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 -demand notice was issued demanding central excise duty of ₹ 1,09,92,429/- and interest and penalty. The appellants were also directed to show cause why the penalty of ₹ 75 lakhs, voluntarily paid during investigation, should not be appropriated towards duty liability and other dues. The directors of the company were also called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with section 32E of the Act, had filed applications for settlement before the Commission disclosing the duty liability at ₹ 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 Act . Section 32K does not contain separate provision for calculation of total penalty and fine. Therefore, for calculation of penalty and fine, section 11AC of this Act , that is, Central Excise Act, 1944, is applicable. Keeping the statutory provisions in mind, under section 11AC, in a regular adjudication, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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