TMI Blog2009 (3) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... cts charging of interest at the rate of 10% per annum on duty payable on all goods removed from the date of removal up to the date of payment of duty thereon. The principal contention on basis of which the impugned order is assailed partially, namely to the extent of imposition of penalty and levy of interest, is that the Settlement Commission has not assigned any reason while arriving at the figure of Rs.20,00,000/- while imposing penalty and applying rate of 10% per annum while directing levy of interest. In support of the submissions made reliance was placed on an unreported judgment of this Court rendered on 25/9/2008 in case of NISSAN COPPER LTD, UNIT NO.1 2 Vs. UNION OF INDIA THORUGH SECRETARY 1 , in Special Civil Application No. 4896 of 2008 and cognate matters, to submit that when no reasons are assigned, the order of Settlement Commission cannot be upheld. It was submitted that the impugned order should be set aside and restored to the file of Settlement Commission for deciding the aforesaid issues afresh. Learned counsel also placed reliance on judgment of Bombay High Court in the case of WEST COAST INGOTS PVT. LTD. Vs. UNION OF INDIA, 2008 (232) E.L.T. 21 (Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine as to whether Settlement Commission had followed procedure which was legal and whether the order was contrary to any of the provisions of the Act. Beyond that the Court had no jurisdiction as held by the Apex Court. The facts are not in dispute. It is not necessary to set out the other facts in detail. The petitioner is not aggrieved with the order of Settlement Commission made in relation to the amount of duty under the Act which is settled at a sum of Rs.1,64,02,180/-. The challenge is only to the part of the order whereunder a direction is given to charge interest at the rate of 10% per annum on the duty payable on all goods removed clandestinely from the date of removal up to the date of payment of duty and levy of penalty of Rs.20,00,000/-. On facts, it is not possible to accept the contention raised on behalf of the petitioners that no reasons are assigned. It is well settled that the order is to be read as a whole and a particular part of the order cannot be read and grievance made while ignoring the remaining part of the very same order. For better appreciation of the contentions relevant part of the order of Settlement Commission as is material for the present mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, settles the case under Section 32F(7) of the Act with following terms and conditions :- Central Excise Duty : The amount of Central Excise Duty is settled at Rs.1,64,02,118/-. This amount already stands paid. Interest : An interest @ 10% to be charged on duty payable on all goods removed clandestinely from the date of removal upto the date of payment of duty thereon, which shall be paid by the applicant within 30 days from the same is conveyed to him by the jurisdictional Commissioner after due calculation. Immunity from interest over and above 10% is granted. Penalty: A penalty of Rs.20,00,000/- (Rupees Twenty Lakhs only) is imposed on the applicant and immunity is granted to him from penalty beyond above amount. Immunity from penalty is granted to the co-applicants. Prosecution : Immunity from prosecution is granted to the applicant and all co-applicants. The above immunities are granted under Section 32 K(1) of the Act. Attention of the applicant is also drawn to the provisions of sub Section (2) and (3) ibid. When one reads the entire order, it becomes apparent that Commission was conscious of the financial constraints faced by the petitioner as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the extent as to whether the Commission did act in accordance with the provisions of the Act. In other words the Apex Court has laid down, as to whether the order of Commission is contrary to any of the provisions of the Act and if so, has it prejudiced the assessee, is the only inquiry which is permissible in a petition under Article 226 of the Constitution. This is of- course apart from the grounds of bias, fraud, and malice which constitute a different category by itself. The Court has further held that the scope of judicial review in a petition under Article 226 of the Constitution is only in relation to the decision making process and not the decision itself nor the validity of the order. The relevant part of he Apex Court judgment reads as under:- "May be, there is also some force in what Dr. Gauri Shankar says viz., that the order of commission is in the nature of a package deal and that it may not be possible, ordinarily speaking, to dissect its order and that the asessee should not be permitted to accept what is favourable to him and reject what is not. According to learned counsel, the Commission is not even required or obligated to pass a reasons order. Be that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that such contravention has prejudiced he appellant." The contention on behalf of the petitioner that the aforesaid judgment of the Apex Court was in relation to interpretation of trust deed and violation of provisions of Income Tax Act, 1961, and therefore, the extracted portion reproduced herein before should not be read as ratio of the judgment, does not merit acceptance. The Apex Court has categorically stated that it was not necessary to go into correctness of interpretation placed upon the trust deed by the Settlement Commission and it was enough if the Court confines itself to the question whether order of Commission was contrary to the provisions of the Act. Only for the purpose of completeness the Court then proceeded to examine whether the order of Commission was vitiated by any such wrong interpretation. From the findings recorded in paragraph no.17 of the said judgment of the Apex Court, it is not possible to state that every order of Settlement Commission has to be a reasoned order, otherwise the same would stand invalidated in law. In this context, the unreported judgment of this Court in case of Nissan Copper Ltd Unit No.1 2 (supra) on which a great deal of em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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